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NAIVAin) C0LLE6E UMASY 

Entered according to Act of CongreM, in the year 1844, by 

Joseph Stort, 
in tlie Clerk's Office of the District Court of the District of Maisachasotts. 



CAMBRIDGE: 

METCALF AND COMPANY 
rRiriTKRf TO THK UlflTKRIITT. 



t 






X PREFACE. 

public justice, there will be found to have been some regular 
modes prescribed for the ordinary cases put in litigation ; and 
from time to time, as new cases have arisen of an unusual and 
extraordinary character, the old forms have been modified, or 
new forms have been introduced. Since there must be some 
rules, the choice is often a mere measuring cast between one 
regulation and another ; and yet that choice must be made ; 
and, when made, the regulation must be uniformly acted on. 
The surprise, therefore, is -not, that we should sometimes be 
unable to assign a satisfactory reason for one particular regula- 
tion, in preference to another. But it rather is, that so many 
regulations can be expounded upon grounds of general conven- 
ience, and vindicated, as reasonable and just in themselves. 

I am aware, that in a treatise so purely technical, there is 
little room for any thing more than dry details, and clear and 
accurate statements. The subject forbids ornament ; and it 
must be discussed with a close and almost servile obedience 
to authority. When, however, a doctrine seemed to me to 
require some qualification, or to admit of a fuller exposition, 
which might be usefully brought before the attentive reader, I 
have endeavoured to make the notes the vehicle, either of criti- 
cism, or of information. I have quoted passages from leading 
authorities on particular points, with a view to convey to the 
student some views, which a brief text would scarcely suggest 
to his thoughts. These quotations will be found, as I trust, 
useful in explaining difiiculties, and in promoting accurate in- 
quiries, and in furnishing hints for future practice. This has 
not been the least laborious part of the work. 

The structure of every Treatise on the subject of Equity 
Pleadings, must be essentially founded on Lord Redesdale's 
admirable work on Pleadings in the Court of Chancery. That 
Treatise has been well described by -Lord Eldon to be '' a 
wonderful effort to collect, what is to be deduced from author- 
ities, speaking so little, what is clear. And the surprise is not 
from the difficulty of understanding all he has said ; but that so 
much can be understood." ^ Sir Thomas Plumer, in his mas- 



1 Lord Eldon, Lloyd v. Johnes, 9 Vcb. 54. 



XII PREFACE. 

Upon a review of his book, I have the consolation to find, that 
I bad not overlooked any very important authorities bearing on 
this subject. I have, however, availed myself of his learned 
researches for a few suggestions, which had not before so 
plosely attracted my attention. 

In submitting the present volume to the profession, I beg to 
return my grateful acknowledgments for the kind manner, in 
which my former labors have been received ; and to ask an 
indulgent consideration for that, which is now offered. The 
task has been one of severe, and exhausting effort, scarcely 
relieved by any consoling circumstance, except the conscious- 
ness of the performance of duty. It has been difficult to keep 
vp a continued attention to the dry details of technical learning 
in the midst of noy other various judicial and professorial en- 
gagements. At some future day I hope to find leisure to com- 
plete my original design by furnishing an elementary outline of 
the Practice of Courts of Equity, from the first inception of 
the cause, through all its various stages, to the execution of its 
final decree, under the orders of the highest Court of Appeal. 
Let me in conclusion say, to the diligent student, that a thorough 
mastery of the science of Equity Pleadings, if not absolutely 
indispensable to professional success and eminence, will, at all 
events, be found in a very high degree to promote them. Let 
him ponder well upon the admonition contained in the language 
of that great jurist of antiquity, Cicero, — " Sic igitur instructus 
veniet ad causas ; quarum habebit genera primum ipsa cognita ; 
erit enim ei perspectum, nihil ambigi posse, in quo non aut res 
controversiam faciat, aut verba ; res, aut, de vero, aut de recto, 
aut de nomine ; verba, aut de ambiguo, aut de contrario."^ 

Cambridok, January 1, 1838. 

J Cicero, Orator, ch. 34. 



XIV CONTENTS. 

CHAPTER IX. 
Modes of Defence — Demurrers, Pleas, Answers, . 433 - 465 

CHAPTER X. 
Demurrers to Bills of Relief 466 - 544 

CHAPTER XI. 
Demurrers to Bills of Discovery . . . 545-610, a 

CHAPTER XII. 
Demurrers to Bills not Original .... 611-646 

CHAPTER XIII. 
Pleas, General Nature and Object of . . . . 647 - 701 

CHAPTER XIV. 
Pleas to Bills of Relief . . . - . 702 -815, a 

CHAPTER XV. 
Pleas to Bills of Discovery 816 - 825 

CHAPTER XVI. 
Pleas to Bills not Original 826-837 

CHAPTER XVII. 

Disclaimers, General Nature and Objects . . . 838 ^ 844 

CHAPTER XVIII. 
Answers, General Nature and Objects . . 845 - 876 

CHAPTER XK. 
Replications and their Consequences . 877 -881, a 

CHAPTER XX. 
Amendments and other Incidents of Pleadings . 882 - 906 

FAOB 

Index 871 



INDEX TO CASES CITED. 



Attorney- General ti. Green 180 


Baker v. Rogen 


120, 121 


V. Heelis 112 


B. WhiUng 337, a, 756, a 


V. Jackson 40, 


Balch tr. Wastell 


69 


122, 163, 23S, 543, 745 


Baldwin V. Lawrence 


107 




.. tr MciCown 


614 


». Lucas S99 


B. Peach 


750, 815 


V. Merchant 


V. Pearl 


813 


TaUoTB' Company S73, 530, 532, 


Balls B. Margrave 


245,1 


538, 853,3 


tr. Strutt 


158, a 


e. New River 


Bally B. Kenrick 


863 


Company 122 


V. Williams 


853 


V. Panther 64 


Bamplon b. Birchall 


657 


V. Parkhursl 64 


Bank of Scotland B.Ke 


65 


t.. Poole 236, a. 


United SutesB. 


Beverly 


238,271,0,278,543 




849, a 


s. Ray 306 

V. BeynoldB 553, 

680 

». Ryder 104, 203 




White 409 

reau 846, 

847 

181 


Utica B. Mease 




V. St. John's 


Banyan t>. Mortimer 


71 


College 2:1,530,532.534 




V. Scott 40 


Barclay v. Russell 


470 


tr. Shelly 93, 238, 


Birfield D. Kelly 


332, 336 


745 


Baring d. Nash 


165, 255 


V. Sadell 522 


Barker v. Dacie 


3ia 


V. Sullon 779 


Baruesley v. Powell 436, 51 1, 780 


t.. Talbot 719 


Barnett b. Grafton 


886 


V. TUer 84 


Harrington v. O'Brien 


337, a, 393, 


B. Turner 415 




414 


V. Vernon 48 


Barron 8. Guillard 


510 


e. Vivian 8, 40, 4Q 


B. Martin 


448 


V. Whotwood 36 


Barry B. Cane 


71 


». Woolrich 64 


Barton «. Jayne 


496 


e.Wyborgh 93, 


Bassett v. Nosworthy 


306 


laa. 138, 745. a 


Bateman v. WUloe 


34,798 


Attwoodt.. Small 263,265,0,853,* 


Batten b. Barfiit 


150, 907, b 


Atwood u. Hawkins 89 


Bayiey b. Adams 651, 671, 678, 


Avery v. Patten 162 




880, 754 


Austin V. Chambera 363, 265, a 


B. Beet 


165 


Aylwin v. Bray 544 


B. De Walkiere 


875 


Ayliffe V. Murray 394 


Beachcroft b. Beachcrofl 


653 




Beaaley B. Kenyon 


214 


B. 


Beaumont tr. Boultree 


40.803 




p. Meredith 


83,94 


Bachelor v. Bean 360 


Btcklev I'. Diimngton 


178, 514 


BiKnal V. Bagnal 333 
Buleyir. Inglee 136, 138,221 


B.>dell b. lloiTntm 


290, 297, b 


Bedford Charity in re 


8 


Bullie V. Sibbald 831 


B. Leigh 


100 


Bainbrldpe v. Burton 131, a 


Boecb B. Cmil 


508 


Bftker V. Booker 453 


Behrenso, Pauli 


T80.O 


tj, Bramat - 316 


c. Sievekine 


780, <i 


r. Harwood 217 


Bell B. Hyde 


63,71 


V. Melliab 443, 469, 463, 464, 


— e. CureioB 


544 


608 


Bellwood B. WnthereU 


574, 60S, 


t>. Pritcbwd 594 




824,832 



xvni 



INDEX TO CASES CIT£D. 



101, 



Buckley v. Cater 
Balkeley v. Dunbar 
Bullock V. Richardson 
Bunyan v. Mortimer 
Burditt 17. Grew 
Burgess v. Wheate 
Burk V. Brown 
Burnett v. Anderson 
Burney v. Morgan 
Burroughs v. Elton 
Burt V. Dennet 154, 207, 
Bushell V, Bushell 
BuUer v. Butler 

r. Pendergrass 

Butterworth v. Bailly 
Butts V, Grenung 

C. 

Caldwell v. Taggart 
Call V. Mortimer 
Calverley v. Phelps 
Campbell v. French 
— — — V. Graham 



Section 

110 

838 

36, 37 

63 

753, 756 

399, 628 

798 

297 

158, 365 

178, 514 

209, 211 

71 

506 

221, 229 

312 

167, 178 



72 

199 

193, 209 

860 

813 

r. Mackay 271, 278, a, 

286, a, 530-534, 537-539 
Candler v. Pettit 332, 336 

Caonal v. Buckle 62 

Capon V. Miles 797, 846 

Capron v. Van Noorden 721 

Cardale v. Watkins 3 1 1 , 32 1 , 560 
Carew o. Johnston 240, 658, 662 
Carlton v. Leighton 240, 658 

r. McKenzie 63, 71, 873 

Carnatic, Nabob of, v. East India 

Co. 468 

Carneal v. Banks 237, 469 

Carnochan v. Christie 400 

Carr v. Scares 820 

Carter, ex parte 287 

Cartwright v. Green 591 

V, Hateley 847 

Cathcart v. Lewis 153 

Cator V, Butler 181 

Cation V, Carlisle 332 

Cawthome v. Chalie 448 

Cave V. Cork 356 

Chadwick v. Broadword 688 

Chamberlain v. Agar 684, 767, 768 
Chambers v. Bull 71 

V, Goldwin 189 

V. Thompson 522, 584, 

587, 588, 597 
Champemoon v. Totness 858 

Champion o. Brown 177 



Section 

Chancey v. May 98, 100, 103, 107, 

108 
Chandler v. Vilett 58 

Chandos v, Talbot 71 

Chapin v. Colroan 754 

Chaplin v. Chaplin 180 

V. Cooper 159 

Chapman v. Turner 652 

Charlotte, The 468 

Chauncey v. Fenhoullet 579 

V. Tabourden 522, 575, 

577, 579, 580, 582 
Chaytor v. Trinity College 121 

Cheetharo v. Croop 26 

Cherokee Nation v. Georgia 469 
Cherry v. Legh 832 

Chertsey Market in re 210 

Chetwynd v, Lindon 457, 458, 578, 

595 
Chicot V, Lequesne 28, 252 

Chirac v. Chirac 469 

Cholmondeley v Clinton 182, 196, 

198, 208, 319, 485, 610, 757,813, 

847 
Christophers o. Sparke 196 

Church V, Lequesne 232 

City Bank v. Bangs 297, a 

Claggett V. Phillips 600 

Clare v. Wordell 378 

Claridge v. Hoare 553, 591, 592, 

593 
Clarke v. Periam 28, 252 

V. Phelps 442 

V, Turston 28 

Clarke's Ex'ors o. Van Riemsdyk 

849, a 
Clarkson v. Bowyer 168, 200 

V. De Peyster 509 

Clayton v. Earl of Winchester 27, 

36, 673, 681, a, 682, 693, 754 

Cleland o. Cleland 91 

Cockburn v. Thompson 75, 76, a, 

77, 78, 87, 89, 94, 96, 99, 103, 

104, 105, 111, 120, 121, 134, 144, 

169,541,745 
Cockburne o. Hussey 333 

Cocker V. Be vis 638 

Cocks V. Sherman 193 

Codrington o. Codrington 853, a 
Coffin V, Cooper 269 

.Colchester, Mayor of, v. 390 

Colclough o. Evans 332, 333, 614, 

616 
Coleman o. Winch 387 

Collins o. Griffith 169 



IHDCX TO CASES CITED. 



Q- 



Dexter v. Arnold 168, 18S, 403, 
404, 407, 413-415, 417, 430, 750, 



Eedaa v. Hirria 106 

Ewie Fire Ins. Co. n. Lent 330 
Etri «. Fiekin 363, S65, a 

EMt Court f. Tuiier SOO 



Eut India CompEuiy v. Canipbell 



7S6,a 




• 


Campion 291 


Dhegeleft v. Loudon AMunmce 




Edwards 396 


Co. 


480 




Henchman 


Disni, Tbe 


468 




841.343,452 


Pilbn ■>. Alvuei 


741 


V 


Neare 166, 


». Franci. 


2Q» 




578, 590 


Bills- 0. Dole 


877 


Echliffo. Baldwin 


156 


Dineley ti. Dinelcjr 
Diowiddje D. Dayley 


383 


Edaell V. Buchanan 


448 


483 


Edwards v. Carroll 


636 


Dioe». Merle 


338, a 


D. Edwards 


846 


Dix v. BriKfia 161 
Dixon •. WyaU 


386,537 


Egberu tp. Wood 100, 


104, 157, 303 


365 


Egremont v. Hamillon 


831 


Doble v. Potman 


309 


Eldridge t>. Knott 


769 




656 


Eleonota v. Whilelmina. The. 468 


Doee. BriiMn 


.1 807, a 


Elibank •. Monlolieu 


61,341 


Dolder V. Bank of Eaglsi 


469, ttOl 
1^8, 514 


miice V. Goodson 


465 


Doran v. SimpMO 


Fllisiiti !•- M,.lT3it 


613 


Dormer ». Forlwcue 4 


, 48, 443, 


Elroendorfe. Taylor 


77, 79, 837. 




60S 




813. 647 


DorMt V. Girdler 


303 


Elmslie e. Macaula; 


232 


DoukIu «. HorafaU 


809, 816 


Emerson v. Dallison 


47 


«. Sherman 364 


, 378. 379 


Eodo V. Caleham 


798 


Draper tr. Earl of Claiendon 193 


English r. Foxall 


40 


Drew v. Drew 651,664 


668, 684, 


EriswoMlir. Lunibett 


193, 334 


6Se, 736 


737, 732 


E»aDs V. Bicknell, 


365.8 


-^e. Hannan 


103,306 


r, Harris 


676. 663. 803 




S03 


V. Stokes 68,94,131. 131. o. 


Duboia ti. Hole 


63, 71 




133. 318 


Dammar v. Chippenham 


S34, 335 


Exeter College V. Rowland ' 279 


1. Wood 


Bfl 






Dpncalfe. Blake 


581,693 


F. 




Duncan e. Lyon 


563 








175, 196 


Pairfai'a Devisee «. Hunter 469 


DuDgey B. Aogove 


398, 893 


Faithful tr. Hnnt 


164,206 


DuDQ i. Calci^ 


253 


Fall.. Chamber! 


460 


. tr. Coate. 


656 


Fallowed tr. WUliamaon 169. 167. 


V. Dunn 


279, 535 




357, 358 




Farmer tr. Curtis 


195. 106 


penham 


595 




Dunny o. Filmore 


418, 634 


Farrsr 9. Granard 


61 


Duiibiall K. Babcii 


69 


Fartell tr. Smith 


94. 104 


Durch p. Kent 


96 


Fanlder p. Staart 37, S52, 608, 651 . 


Durdant e. Redman 


45C, 464 




668,856 


Dnraley n. Fitzhardinge^ 


145, 301, 


Fawke* «. Pratt 


«94, 74S 


303,800 


FellB. Browne 77, 81 


84, 186, 196 


Djrsier, ei parte 


531, 676 


FeUowi V. Fellows 


371, 886, 386 



tr. Williamson 633, 830 
Fenn t*. Craig 00, 09, 94, 115, a, 
133, 134, 160 
Fenton tr. Hughes 326, a, 938,934, 
619, 670 
Fenhoulet ». Paaaavaot 369 

Ferguson ». O'Hara 688 



INDEX TO CASES CITED. 



Graotv. Van SchoonhoTen 61, 361 

GnuiviUet.. RamsJeii 644 

Grave. Chaplin 113 

Green n. Weaver 521, 578, 589 
GreenleBf V. Queen 336 

Greeoough v. Gaakell 5W, 600, 602, 
BiO 
t»i,a 
101 

Qngoi V. MolsBWonh 405, 635 

Gregory V. Paul 61 

Gteafell t>. Girdleetone 759. a 

Gray «. DickinaoD 421 

e. Heaketh 522 

Griffin v. Archer 233, 234 

Griffith «. Bateman 733 

r. Hamilton 511, 766 

V. Hood 61 

— e. Wood 869 

Grignof Lessee of, e. Astor 163 
Grimes V. French 4 1 , 4S 

Glide t). Mumford 48, 881, a 

Guiborn v. Fellowes 502 

Gun r. Prior 708, 862, b 

H. 

Haddock t>. Tomlinsoa 44, 60 

Haig V. Homan 407 

Hainea e. Beach 186, 193 

Hall t>. Hoddesdon 306, 315 

V. Haliby 257, 263, 265 

e. Noyes 651,660, 737,853, i 

p. Wood 854,855 

Hallelt v. Hallett 77, 80, 00. 94, 09. 
10(1, 1(14, 57, 158,204.205 
Hallocko. Siiiiih 195 

Halaam, ex parle 71 

Hamerale; v. Lambert 54, 178 

Hamilton v. Hougbion 641 

Hamm V. Steiens 310 

Hamper, cr parte 167 

Hanbury ■>. Stevens 430 

Haodford v. Slorie 102 

Haodwiek v. Shaen 147 

Hanroti v. Cadwallader 62 

HudcasUe «. Smitbaoo 121 

Harding e. Handy 79, 160 

V. Harding 875 

Htrdmsn v. Ellames 5^, 651, 657, 
181,6."- — 



485, 503 



Hudy V. Reeves 

Harland v. Eoierson 

Hani* V. Ingledew 87, 150, 162, 172, 



Harris 0. Pollard 617,647 

Harrison V. Hogg 253, 279, 528, 530 

V. Ridley 331, 349, 379, 

383, 626 

V. Soutbcoie 675, 576, 583, 

668 

p. Stewardaon 76, o, 148, 

205,207,210,316,217 
Hant V. Coming 662, 680 

Uiirn.,^11 f Tciwnstiid 411,833 
Harvey v. Cook 330 

B. East India Company 44 

V. Harvey 89, S4, 105, 134, 

135, b, 140, 207, a, 207, b 

V. Morris 280 

Hawker v. Duncombe 431 

Ha^vkina t. Hankins 76, a, 89, 94, 

W, 1-19, 207,0. 307,*, 210, 217 

V. Kelly 513 

Hawley v. Wanier 167 

o. WolverWn 268 

Haycock v. Haycock 89, 104, 203 
Hayiie v. Hayne 303 

Hayward e. Coostable 700 

Healb V. Percival 81 

Hfallieoale r. Vk-i-u: 670 

Henderson v. Henderson 783 

Hendricks v. Robinson 98, 99, 100 
Henley r. Stone 161, 185 

Henriqez e. Dutch East India 

Company 65 

Hepburn v. Durand 852 

Herring v. Clobety 600 

Hiehens v. Congreve 97. 107, 100, 

121, 126, 133, 541 

ti. Lander 766. 769 

Hickock V. Scribner 72. 75 

Hicksv. Raincock 461, 458 

Hiern v. Mill 40, 49 

Higginboiham v. Burnet 312, 443 
Higginson v. Clowoi 394 

Hill D. Adams 180 

V. Reardon 456 

p. Smith 70 

Hilton V. Barrow 391 

V. Lord Scarborough 278 

Hinckley t. Barton 47 

Hindman r. Taylor 681, 764, 831 
Hindmarsh v. Southgate 



863 



Hoare e. Parker 

V. Peak 448, 484, 751 

Hobart V. Abbot 186, 191, 103, 199 
Hodgkiu V. Longden 319 

Hodgkinson, ei parle 167 



XXIV 



INDEX TO CASES CITED. 



Section 

Kay V. Marshall 657, 708 

Kaye v. Fosbrook 495, 516 

Kemp 0. Mackrell 399 

V. Morrell 299 

Kemp^s Lessee v. Kennedy 720 
Kennedy v. Daly 426, 428, 775 
Kensington v. Mansell 319, 558 

„. White 286, a, 537 

Kenyon v. Worthington 94 

89, 104 

569, 820 

332 

149 

312, 574 

315 

312 

55 

55 

505 

V. Burr 556, 595 

V. King 182 

602 
790 
61, 209 
528 
726 
692 
251 



Kettle V. Ctary 
Kerr v. Rew 
Kilcoarney v, Lee 
Kimber v. Ensworth 
Kimberley v. Sells 
King V. Allan 
— V. Heming 
King of Spain v. Machado 

— V, Mepdazabel 

King, The, v. Blatchford 



Kingston v. Gale 
Kinsey v. Kinsey 
Kirk V. Clark 
Kirkley v. Bunton 
Kirkman v. Andrews 
Kirkpatrick v. White 
Knight V. Banfield 

V. Knight 72, 74, 76, 173, 

174, 182, 300, 344 

r. Moseley 443 

Kuypers v. Dutch Reformed 

Church 443, 448, 689, 853 

Kyne v. Moore 209, 283, 530, 536 



L. 



Laight V. Morgan 312 

Lambert v. Hutchinson 237 

Lampert v. Lampert 61 

Lancaster v. Evers 178 
Lanchester V. Thompson 117,121 

Lane v. Fawlie 170 

V. Hobbs 421 

V. Stebbins 311, 324, a 

Lange v. Jones 230 

Langham v. 852, a 

Langley v. Fisher 732, 863, 868, a 

Langston v. Boylston 294, 297 

Langton v. Horton , 807, a 

Lansdown v. Elderton 282 

Lautour v. Holcombe 495 

Law V. Rigby 99, 739 

Lawley «. Walden 151 



Lawson v. Barker 
Layton, ex parte 
Leacroft v. Dempsey 
Lee V. Read 
— V. Lee 
Legal V. Miller 
hegeeXi v. Postley 
Legh V. Haverfield 
Leigh V. Leigh 
V. Thomas 

Leithley v. Taylor 
Le Neve v. Le Neve 

r. Norris 

Leonard v. Leonard 

V. Morris 

Le Roy v, Veeder 

V, Servis 

Le Texier v. Anspach 

Leving v. Caverly 
Lewellen v. Mackworth 
Lewis V. Nangle 
V. Zouche 



Section 

104, 140 
167 
699 
577 
329, 340, 350 
42, 394 
319, 322, 553 
394 
771, 821 
89, 94, 98, 99, 
161 
71 
71 
415 
606, 607 
196, 199 
312 
312 
232, 235, 
519 
70 
420, 835 
181, 199 
148 
63,71 
394 
232 
232 
413-415 
312 
497 
312, 437, 721 
42,254 
234 
98, 104, 107, 
111,497 
144, 146, 327, 
331,350,351, 384 
Lloyd's case 70 

Logan V. Fairlie 179 

Loker v, Rolle 476 

Lomax v. Hide 193 

London, Bishop of, v. Fytche 

319, 553 

, Mayor of, r. Levy 29, 248, 

259, 321, 323, 443, 445, 558, 570, 
578, 595 
V. Corporation of Liver- 
pool 654 

V, Perkins 120, 124, 278 

r. Richmond 118 

Long V. Burton 848 

V. Majestre 178, 514 

V. Yonge 120, 126, 132, 134 

Longman v. Colliford 332 



Lillia V. Airey 
Lindsay v. Lynch 
Lingood v. Croucher 

V. Eade 

Livingston v. Hubbs 

-— V, Livingston 

V. Lynch 

V. Story 

Lloyd V. Brewster 

V. Lander 

V. Loaring 

V, Johnes 



XXVI 



INDEX TO CASES CITED. 



Section 

Moodalay v, Morton 235, 303, 322 
Moore v. Edwards 761 

V. Hart 658 

V, Hudson 43, 44 

■ V, Lytlle 600, 502 

V, Moore 442 

- V, Welsh Copper Com- 
pany 737 
Morgan r. Harris 312, 512, 546 

». Morgan 160 

V, Scudamore 371 

V, Thorn 67 

Morley v. Reynoldson 207, a 

Morret v, Westerne 193 

Morrice v. Bank of England 790 
Morris v. Morgan 249, a, 312 

Morrison v. Arnold 181 

V, Tumour 661, 665, 762, 

764, 766 
Morse v. Buckworth 579 

V, Sadler 104, 164, 205 

Moses V. Lewis 482 

Mosley v. Hawks 644 

Mostyn v. Fabrigas 24 

Motteaux v. London Assurance 

Company 480 

Mounsey v. Bumham 838 

Mountford v. Taylor 852, 855 

Movan v. Hayes 154 

Muckleston v. Brown 36, 312, 766, 

767 
MuUowland v. Handrick 263, 265, a 
Munch V. Cockerill 213, 214 

Munoz V. De Tastet 44, 80 

Murray «. East India Co. 831 

V. Elibank 612 

V. Shadwell 744 

Murriet «. Lyon 71 

Moseell «. Cooke 766 

». Morgan 426 

Mutter V. Chauvel 333 



N. 



Nanny v. Tottv 617 

Neafie «. Neafie 790, 793 

Neate «. Latimer 859 

V. Duke of Marlborough 

257, o, 319, 855 
Newbury v. Wren 400 

Newhouse v. Mitford 421 

New Jersey v. New York 471 

Newkirk v. WiUett 325 

Newland v. Champion 100, 141, 

178, 514 



Section 

Newman v. Godfrey 234, 848, 857 

V. Wallis 701 

Newscome v, Bowyer 61, 63 

Newton v. Earl of Egmont 101 , 
102, 133, 149, 158, 164 
New York v. Connecticut 471 

Nickolson v. Knowles 296 

NicoU r. Roosevelt 354, 369 

Nobkissen v. Hastings 653,656,895 
Noble V. Garland 315 

Norbury r. Meade 267 

Norfolk, Duke of, v. Myers 120 

, ex parte 167 

Norris v. Le Neve 413, 415 

Norrish v. Marshall 191, 219 

North t. Gray 303 

Northey v. Northey 228 

Norlhleigh v. Luscombe 812, b 
Norton v, Sprigg 360 

Noysomhed, The 490 



O. 



O'Brien r. Conner 


635 


Odell V. Graydon 


193 


Offley V. Jenney 


58 


Ogilvie V. Heme 


645 


Ogle V, Haddock's Adm'r 


479 


Oldham «. Eboral 339, 


350, 351, 




385 


Olding V. Glass 


846, a 


Oliver v, Haywood 


29, 595 


Ontario Bank v. Root 


763 


Orcutt V. Arms 


699 


Ord V. Huddleston 


725 



». Noel 413, 414, 417, 423 

Orr V. Hodgson 469 

Orteges v. Messere 64 

Osborne v. Usher 144, 424 

Osbourn «. FaUows 188, 207 

Ovey V. Leighton 606, 847, 852, b 
Owen V. Curzon 382 

Owens V. Dickerson 101, 133 

V. Smith 600 

Owings V. Hull 24 

Oxford, Lord, v. Lord Rodney 50^ 



Palk V. Clinton 40, 72, 84, 186, 

195, 196 
Palmer v. Earl of Carlisle 183, 201 

V, Dutcher 101 

r. Mure 251 

Parker v. Alcock 630 



INDEX TO CASES CITED. 



Baynere. Juliwi 


161, S7S 


ft«*d >. H»wley 


638 


Read V. Brookman 


4 


Reeve v. Aitotney-Generel 69 


V. Da!bv 


790 


Regnea v. LewU 


63 


-Reapaas •. McClanahac 


415 


Rev.ioldsun r. I\-rkiii9 


144, 198 


Rhorlcsp. Warljimoii 


510 


Rhode laland v. Muaachuaett* 


471,653,697 


Rice e. Page 


ise 


«. Shuie 


78 


Riohacda v. Cooper 


193 


V. JackaoD 


690 


0. SaJier 


397 


KichanlMD t.. Haatbg- 


115, b, 132, 




134 




133, 134, 






135, 135, b 


Ricbmond v. Tavlaar 


436 


Jtidler V. Ridler 


64 


Ritchie V. AylwiD 


662 


Rivet V. Lancaster 


ei 




466,469 


Robert* V. Clayton 


645 


T. Hartley 


660 


•. Kingaly 


415 


B. Marchaot 


160, 177, a 


Robertaon v. Lubbock 


652, 665 


Robinaon p. Gee 


183 


V. Smith 


745 


. V. Thompaon 


457, 458, 




641 


e. Tonge 


790 


Roche IF. Morgell 649, 665, 665 


Rodgera e. Scott 


316 




Co. J53 


Rolfs. Pateraoa 


590 


Rondeau >. Wyatt 


310 


Rootham v. Dawaon 


478 


Roae •. Ciannel 


306,316 


..Page 


183 


Roscarrick r. Barton 


193 


Robs v. Crary 


89 




Portagal 




390 


Routh t. Kinder 


103 


Roveray tr. Grayson 


85 


Rowe V. 


308. 300 


V. Toed 600, 607, 647. 659. 




763, 763 


•. Wood 


332 


RotIb v. Wynne 


743 


Rndge v. Hepkina 


131 



Rdluir, 6i';>(ir» 163 

RoBsell t>. Cltuke'a Ex'te 81, 86, 

319, 476, 641 

e. Sharp 331, 345, 383 

Rutland v. Brett 790 

Ryan t). Anderson 163 

Rylands v. Ia Touche 182, 339, 



Ryrea e. Ryres 



S45, 320, 476 



Sackville 17. Aylenorth 301, 318 
Salkeld tr. Science 457, 659, 693 
Saltus «. Tobiaa 653, 657 

Salvidge u. Ryde 374, 530, 538 
Saadeia v. King 668, 676, 687, 

732, 797 
Sanderson v. Crouch 360 

Sandilanda e. Tnnes ' 179 

Saville tt. Tankred 221 

SaTory tr. Dyer 41 

SaxtOQ V. Davis 271, 405, 616 

Scholelield v. Heathfield 167 

Schroeppel e. Redfietd 316 

Scott tl. Jones 759, A 

V. NieoH 74, a, 300 

Scurry ii. Morse 318 

Sedgidck V. Clevelsnd 343, 349, 
351 
Selby V. Crew 694 

Sellas V. Dawson 383 

SelloQ V. Lewen 699 

Sells V. Hubbetl's Adm'r 164 

Selyard v. Hniris's Eiecntora 198, 
914 
Setnple v. Price 333 

Severn u. Fletcher 313 

Seymour b. Seymour 319 

Shackell v. Macauley 280, 530, 

663, G97 
Shafi.'l.iirv r. Arrowsmith 57S 

Sharp e. kvaim 694 

Slinqjep. Taylor 41,44 

Shaw V. Ching 606, 651, 668 

1>. CoMer 393 

Sheldon it. Fortewue Aland 436 

Shelly o. 308 

Shepherd v. Gwinnet 193 

V. Lloyd 464 

V. Roberta 847 

Sherman v. Cox 193 

Sherrington tr. Smith 635 

Sherrit v. Birch 147, 165, 304 

Shirley v. Ferrera 304, 308 



XXX 



INDEX TO CASES CITED. 



Section 

Thomas v. Lethbridge 852 

Thompson 9. Brown 100 

V, Topham 87, 181 

Thorold v. Hay 873 
Thorby v. Yeates 63 
Thorpe v. Hughes 563 
— V. Jackson 167, 178 
V. Macauley 315, 553, 597, 

608 
Thring v. Edgar 651, 668, 673, 

676, 682, 688, 754 
Todd V. Gee 312, 443 

ToUett V. Tollett 513 

Tomkin v. Lethbridge 339, 385, 

462 
Tomlins v, Palk 421 

Topham v. Constantine 41 

Toarton «. Flour 787 

Townley v. Osney 501 

Townsend v, Campemowne 160, 

177 
Trayers v. Bulkley 63, 71 

Trecothic v, Austm 153, 231 

Trelawney v. Williams 488 

Trevor v. Trevor 776 

Trinity House, Corporation of, 

V. Surge 598 

Troughton v, Binkes 184, 516 

Turner «. Borlase 129, a 

V. Hill 129, a 

V, Robinson 271, a, 535 

V. Turner 58, 60 

». Wight 156, 342, 351 

Turner's Adm*r «. Bank of North 
America 720, 721 

V. Emille 721 

Tweedell v. Tweedell 506, 558 
Tyler ». Bell 179 



U. 



Union Bank of Geoigetown v, 

Geary 849, a, 875, a 

United States v. Arredondo 469 

V. Clarke 469 

' V. La Vengeance 24 

— — V, Peroheman 468, 

469 

V. Peggy 468 

Urlin V, Hudson 737, 742 

Usborne t7. Baker 614 

Utica Ins. Co. v. Lynch 854 

Utterson v. Mair 178, 227, 514, 526 
Uxbridge v. Staveland 255, 256, 

257, 580 



V. 

Bactioa 

Van Cleef v. Sickles 103, a 

Van Hook v. Whitlock 503 

Van Sandau v. Moore 94, 132, 135, 

848,869 
Van Vechten v, Terry 148 

Varick v. Attorney-General 283 

V. Smith 284 

Vattiere v. Hinde 237 

Vanghan v. Aldridge 579 

V. Fitzgerald 306, 316, 

316 
Verchild «. PauU 810 

Verney v. Macknamara 900 

Vernon v, Vernon 543, 817 

V. Blackerly 1 18 

Verplank v. Caines 443 

Vigors V. Lord Audley 343, 353, 

541, 374, 541 
Vredeoburg v. Johnson 500 

Vulliamy v. Noble 178 

W. 

WagstafTv. Bryan 266 

Wainwright «. Waterman 104, 203 
Waite V. Temple 90 

Wake V. Parker 63 

WakeUn v, Walthal 640 

Wakeman v. Grover 150, 157 

Walburn v. IngDby 97, 115, 132, 

134,258 
Walford v. De Pienne 
Walker v. Devereaux 
Wall V. Stubbs 
Walley v. Walley 
Wallis V. Duke of Portland 



V. Duke of Rutland 



61 
48 
769 
78,81 
319, 
557 
594 
313 
42 



Walmsley «. ChUd 
Walpole V. Lord Orford 
Walsingham, Lord, v. Goodriche 

600 
Walworth «. Holt 78, 96, 115, 132, 

134, 135, b 
Walsh ». Clive 657 

Ward V, Arredondo 77, 79 

». Cooke 271 

V. Duke of Northumber- 
land 271, 276, 285, 530 

V, Meath 71 

Ware v. Hylton 469, 470 
Waring v. Mackreth 312, 646 
0. Ward 182, 506 



XXXIl 



INDEX TO CASES CITED. 



Section 

Wright V, Dorset 358 

V. Howard 332 

V. Plumptre 629, 667 

Wrottesley v. Bendish 679 

Wyboum ». Blount 71 

Winch V. Meal 234, 235 

Wynn v. Doughty 683 

V. Williams 759 

Wynne ». Callender 271, 286 



Wynne v. Jackson 

Y. 



Section 
443 



Yates V. Hambly 194, 198 

Yeaton v. Lenox 279 

York, Mayor of, v. Pilkington 98, 

120, 121, 126, 278 
Young V. Keighly 413-415, 417 



2 EQUITY PLEADINGS. [CH. I. 

dence of every civilized country, ancient and modern, 
has established certain modes, in which the complaints 
and defences of parties are to be brought before the 
public tribunals; and has authorized the latter, by 
rules and orders, to prescribe the time, the manner, 
and the circumstances, in which every suit is to proceed, 
from its first institution to its final determination. 

^ 2. This is emphatically true in the jurisprudence of 
England and America ; and is not only exemplified in 
the proceedings in suits at Common Law, but in those 
also, which are governed by the larger and more liberal 
doctrines of Equity. Indeed, in the latter, as well as 
in the former, there are many rules altogether founded 
in artificial reasoning, but which, nevertheless, may be 
affirmed, with few exceptions, to be greatly promotive 
of public justice, and subservient to private conven- 
ience. If, here and there, any of them work an ap- 
parent hardship or mischief, it will, on close examina- 
tion, be found, that they also accomplish much gener- 
al and permanent good ; and in this respect they par- 
take only of the infirmity of all general rules, which 
must, in particular cases, give rise to some inequali- 
ties, and s^ut out some individual equities and rights. 

^ 3. The design of the present Commentaries is to 
present a general, but, at the same time, an accurate, 
outline of the proceedings in Courts of Equity from 
the original institution of a suit to its close, and to ac- 
company the same with such explanations and illus- 
trations, as may serve to develope the principles, on 
which they are founded, and the reasons, by which 
they are sustained. It will not, indeed, be possible, in 
all cases, to ascertain these principles and reasons ; for 
they are sometimes lost in remote antiquity, and 
sometimes they depend upon rules of such a purely ar- 
tificial character, sdthough arising from the exercise of 



4 EQUITY PLEADINGS. [CH. I. 

Court, and whether interlocutory or otherwise, which 
may become necessary or proper for the due conduct 
thereof from the beginning to the final determination 
thereof. 

^ 5. Although, in a general sense, the distinction be- 
tween the pleadings and the practice in a suit is suffi- 
ciently obvious from the foregoing description of their 
respective characters and objects ; yet it is not easy, 
even if it be practicable, wholly to separate the consid- 
erations belonging to the one from those belonging to 
the other. The principles, which regulate the plead- 
ings, are sometimes so intimately connected with the 
practice of the Court, as to the time, the manner, and 
the circumstances, which affect their introduction and 
use, that any discussion of the former without adverting 
to the latter would be very deficient in the appropriate 
details, and imperfect in the just expositions belonging 
to the subject. Thus, for example, it is the proper 
office of pleading to ascertain, what facts should be 
charged in the plaintiff's statement of his case ; but, if 
the facts are imperfectly stated, the time, and manner, 
and circumstances, in which the plaintiff will be per- 
mitted to make a more perfect statement of his case, 
by way of amendment, properly belong to the practice 
of the Court. But a treatise, which should embrace 
the subject of the amendment of pleadings, without 
adverting to the time, the manner, and circumstan- 
ces, under which such amendment could be made, 
would be manifestly defective in its most important 
details. 

^ 6. In the present Commentaries, therefore, mat- 
ters of practice, when mixed up with matters of plead- 
ing, will be occasionally introduced, whenever they 
may serve better to explain the particular topic under 
consideration. In other respects, these subjects will 



EQUITY PLEADINGS. [CH. II. 



CHAPTER II. 

BILLS IN EQUITY, GENERAL NATURE AND FORM. 

§ 7. When a private party has a case, which he is 
advised is redressible only by an application to a 
Court of Equity, he commences his suit by preferring 
to the Court, having jurisdiction, a w^ritten statement 
of his case, which is called a Bill in Chancery, or a 
Bill in Equity, which is in the nature of a petition to 
the Court, and sets forth the material facts, and con- 
cludes with a prayer for the appropriate relief, or 
other thing required of the Court, and for the usual 
process against the parties, against whom the relief or 
other thing is sought, to bring them before the Court 
to make due answer in the premises.* The bill is 
sometimes called an English Bill, when it is addressed 
to the High Court of Chancery in England, in order 
to distinguish it from the proceedings in suits within 
the ordinary jurisdiction of that Court as a Court of 
Common Law, which latter, though now in the 
English language, were anciently in the French or 
Norman tongue, and afterwards in the Latin ; where- 
as Bills in Chancery were always, or at least from 
very early times, preferred in the English language.^ 

§ 8. When the suit is instituted on behalf of the 
Crown or Government, or of those, who partake of its 



1 Mitf. Eq. PI. by Jeremy, 7; 3 Wooddes. Lect. 55, p. 367-369. 
3 Mitf. Eq. PI. by Jeremy, 8. See Calendar of Proceedings in Chan- 
cery, printed by Parliament, in 1827. 



8 EQUITY PLEADINGS. [CH. II. 

connection with the Crown or Government, of the 
injury to which he has a right to complain. In such 
a case, his personal complaint is joined to and incorpo- 
rated with the Information given to the Court by the 
oflScer of the Crown or Government, and then they 
form together an Information and Bill, and are so 
termed.* Informations, however, differ from Bills little 
more than in name and form, and therefore the same 
rules are in general applicable to both.' Informations 
respecting charities constitute the most striking excep- 
tion ; for in these the Court will not require the same 
strictness, either as to parties, or to pleadings, as is 
ordinarily required in Bills. The other peculiarities of 
Informations are too few to justify any distinct exam- 
ination.' The subsequent remarks will therefore be 
mainly confined to the general nature and structure of 
Bills. 

^ 9. It is obvious, that every Bill must have for its 
object one or more of the grounds, upon which the 
jurisdiction of a Court of Equity is founded. That 
jurisdiction sometimes extends to the final decision of 
the subject-matter of the suit ; sometimes, it is only 
ancillary to the decision of a present suit brought or 



1 Mitf. Eq. PI. by Jeremy, 22, 23, 99, 100 ; Cooper, Eq. PI. 1 ; Attor- 
ney-General V. Vivian, 1 Russ. R. 235, 236 ; Attorney-General v. Mayor 
of Bristol, 3 Madd. R. 319 ; S. C. 2 Jac. and Walk. 299 ; 1 Mont. Eq. 
PL eh. 4, p. 87. Sometimes, in cases of this sort, the Crown is repre- 
sented by the Attorney-General as plaintiff, and by the Solicitor-General 
as defendant, in the same suit, where there are conflicting claims between 
the King and persons partaking of his prerogative or under his peculiar 
protection. That was the case in Attorney-General v. Mayor of Bristol, 
3 Madd. R. 319, S. C. 2 Jac. and Walk. 294, respecting a charity ; 
Mitf. Eq. PI. by Jeremy, 22 note (b) ; Attorney-General «. Vivian, 
1 Russ. R. 226. 

9 Mitf. Eq. PI. by Jeremy, 99, 100 ; Cooper, Eq. PI. 105, 106 ; 1 Mont. 
Eq. PI. ch. 3, p. 81-86. 

3 Cooper, Eq. PI. 104-107; Barton's Suit in Eq. 25. 



10 EQUITY PLEADINGS. [CH. II. 

a ruinous infirmity. But of this more will be said in 
another place. 

^11. In early times, as might well be supposed, Bills 
were in their structure of great simplicity and brevity. 
The cases, in which resort was then had to Equity 
jurisdiction, were comparatively few, and the facts 
were of no great complexity or difficulty of detail. The 
rights of parties depended upon titles exceedingly sim- 
ple in their nature and origin. The wrongs to be re- 
dressed were palpable and direct. The whole busi- 
ness of human life flowed on in narrow and shallow 
channels ; and it might be said, almost without a fig- 
ure, that, as the stream moved along with its slow and 
languid and winding cunpent, it might be sounded and 
measured to its very depth and bottom by any common 
mind. The cause of every interruption in its progress 
was immediately visible ; and the remedy to be applied 
was as clear, as the ripple of the stream, which indi- 
cated it, to the most careless eye. 

§ 12. In some of the most ancient Bills, as appears 
by the records in the Tower in London, the plaintiff 
did not pray any relief or any process ; but merely 
prayed the Chancellor to send for the defendant, or to 
examine the defendant ; and in others, in which relief 
was prayed, the prayer of process was various, some- 
times a writ of corpus cum causdy sometimes a sxibpanaj 
and sometimes other writs.^ Afterwards, the Bill as- 
sumed a more regular and uniform frame, although it 
was very unlike that belonging to the present day. 
In the form alluded to, it contained a statement of the 
facts of the plaintiff^s case, followed by a prayer to the 
Court to grant suitable relief, and, for that purpose, that 
the subpoena of the Court might issue to bring the par- 

1 Cooper, Eq. PI. 3, 4. 



12 EQUITY PLEADINGS. [CH. II. 

plied, become the means of eliciting the truth, and 
often of saving much delay and inconvenience and ex- 
pense to the parties.^ 

^13. Equity Pleading has, indeed, now become a 
science of great complexity, and a very refined species 
of logic, vi^hich it requires great talents to master in all 
its various distinctions and subtle contrivances, and to 
apply it, with sound discretion and judgment, to all 
the diversities of professional practice. The ability to 
understand, what is the appropriate remedy and relief 
for the case ; to shape the Bill fully, accurately, and 
neatly, without deforming it by loose and immaterial 
allegations, or loading it with superfluous details; and 
to decide, who are the proper and necessary parties to 
the suit ; — the ability to do all this requires various 
talents, long experience, vast learning, and a clearness 
and acuteness of perception, which belong only to 
very gifted minds.' Without these, diligence and 
industry will not always ensure success ; although it 
may be as truly said, that, without the latter also, 
genius, however high, will find itself outstripped in the 
race, and be compelled to pay homage to inferior 
minds, who may win an easy triumph by steady perse- 
verance against the bold, but irregular, sallies of less 
wary adversaries. 

§ 14. The pleadings in Equity were probably bor- 
rowed from the Civil Law, or from the Canon Law 
(which is a derivative from the Civil Law), or fix)m 

1 Mitf. Eq. PI. by Jeremy, 47 ; 2 Mont. Eq. PL 311. Note T. F. — 
Mr. Bell (one of the most experienced counsel in Chancery), in his an- 
swers to the interrogatories put by the Chancery Commissioners, gave 
some very interesting views of this subject, which every student would 
do well to peruse. See, especially, his answers to questions from Q. 5 
to Q. 34, in the Parliamentary Report of the Chancery Commissioners, 
in March, 1826, Appx. p. 1-3. 

8 See Cooper, Eq. PI. 4. 



14 EQUITY PLEADINGS. [CH. II. 

Chancery attained more extensive jurisdiction, and 
exercised more diversified powers, new modes of pro- 
formed into what they called articuli ; and upon these articuH interroga- 
tories were framed, to be exhibited to the witnesses. But the witnesses 
were not obliged to answer any interrogatory, which was not framed out 
of one of the articles. Upon these interrogatories, one oC the judices dati 
himself examined ; and the depositions were taken in writing by a notary, 
or one of the judge^s clerks. When all the witnesses were examined, 
both for the actor and reus, then they published the depositions, and 
gave out copies of them to both parties ; upon which the jurisperiti et 
patroni made the orations for their clients before the judges, and then 
the judges pronounced their sentence, which was given to the praetor to 
be executed. 

'^ But, to describe this more fully, though according to the ancient form, 
any Roman, who had a demand against another, might drag him to justice, 
ohtorto collo, as they called it ; yet that being found inconvenient, they 
came to a new method, which was, that they should first edere actionem 
before the pretor ; and then the praetor gave him out his proper action, 
and a liberty to cite the party, and he either cited him by himself, or by a 
messenger ; and then the defendant was either obliged to go along with 
his adversary, or give security to appear ; and if he did neither, the actor 
might obtorto collo force him before the praetor. When the reus came in 
before the praetor, the actor did produce his cause of complaint, which 
was sometimes called the second libel ; for the first libel was in order to 
obtain the power of citing, and was called the libellus supplex; and the 
second, to show the reus, what he was to answer, was called the libeUus 
actionis out meritorius ; and then the actor asked of the praetor potesiatem 
agendi, that is, the power to implead the defendant, and formulam, con- 
taining the form of the action, and judicem, who was to hear and deter- 
mine the matter. 

** And, for that end, the actor did summarily show before the praetor, 
how the action accrued ; and, if it was founded on any instrument, he pro- 
duced it ; if not, a witness before the praetor. He, likewise, the reus, pro- 
posed his exceptions, either dedinatorice, also called dilatorue, or peremp- 
toria; though the peremptoriiB might also be put in before the judge. 
And thus the cause agdnitur summatim, as they call it, and the praetor 
determined, whether they should proceed in judgment or not. If the 
praetor adjudged they were to proceed, then the reus was either to yield, 
or give up the matter in demand, or contest it, which was the litis conies- 
taiio, and was closed before the praetor. 

'* When the praetor had given a judge, he was to make out a citation 
against the reus to appear before him, and there the first act was, for 
the defendant to answer the positions on the libel. After those positions 
were answered, the next citation was upon the articles, upon which the 
defendant was to bring in his cross interrogatories -to the witnesses, who 



16 EQUITY PLEADINGS. [CH. II. 

applied to the peculiarities belonging to certain kinds 
of Bills. 

^16. The most general division of Bills is into 
those, which are original, and those, which are not 
original. Original Bills are those, which relate to 
some matter, not before litigated in the Court by the 
same persons, standing in the same interests.^ Bills 
not original are those, which relate to some matter al- 
ready litigated in the Court by the same persons, and 
which are either an addition to, or a continuance of an 
original Bill, or both.' There is another class of Bills, 
which is of a mixed nature, and sometimes partakes of 
the character of both of the others. Thus, for exam- 
ple. Bills brought for the purpose of cross litigation, or 
of controverting, or suspending, or reversing some de- 
cree or order of the Court, or of obtaining the benefit 
of a former decree, or of carrying it into execution, 
are not considered as strictly a continuance of the for- 
mer Bill, but in the nature of original Bills.* And, if 
these Bills require new facts to be stated, or new par- 
ties to be brought before the Court, they are so far 
strictly of the nature of supplemental Bills.^ For all 
the objects of the present work, this last class may be 
treated as included in that of Bills not original.^ 

§ 17. Original Bills may be again divided into 
those, which pray relief, and those, which do not pray 
relief.* In a broad and general sense, all Bills in 
Equity may be said to pray relief, since they seek the 



1 Mitf. Eq. PI. by Jeremy, 33 ; Cooper, Eq. PI. 43. » Ibid. 

3 Mitf. Eq. PI. by Jeremy, 33 ; Cooper, Eq. PI. 44, 62. 

* Mitf. Eq. PI. by Jeremy, 96, 97; Cooper, Eq. PI. 100. 

5 Lord Redesdale has treated this class separately. Mr. Cooper has 
treated it as belongmg to the class of Bills not original. Mitf. Eq. PI. 
by Jeremy, 33, 35, 80 ; Cooper, Eq. PL 62. 

« Mitf. Eq. PI. by Jeremy, 34 ; Cooper, Eq. PI. 43, 44. 



18 EQUITY PLEADINGS. {CH. II. 

Bons, for the safety of the person exhibiting the Bill.' 
(3.) Bills of Certiorari, which pray a writ of certMMrari, 
in order to remove a cause from an inferior Court of 
Equity, for the purpose of having it further proceeded 
in, and decided in the superior Court o( Equity, to 
which the process is returnable.* This last Bill is rf 
rare (if any) use in America, and is not of very fre- 
quent occurrence in England. 

§ 19. Original Bills, not praying relief, are of two 
kinds. (1.) Bills to perpetuate the testimony of 
witnesses, or to examine witnesses de bene esse. 
(2.) Bills of discovery, technically so called; that is to 
say, Bills for the discovery of facts resting within the 
knowledge of the party, against whom they are exhib- 
ited, or of deeds, writings, or other things, in his cus- 
tody or power.* Of each of these different species of 
original Bills we shall treat more at large hereafter. 

^ 20. Bills not original (as we have seen) are either 
( 1 .) an addition to, or a continuance of, an original Bill ; 
• or (2.) they are for the purpose of cross litigation, or 
of controverting, or suspending, or revereing some 
decree or order of the Court, or carrying it into execu- 
tion.^ Of the former kind are, (1.) A Supplemen- 
tal Bill, which is merely an addition to the original 
Bill, to supply some defect in its frame or structure.^ 
' (2.) A Bill of Revivor, which is a continuance of the 
original Bill, to bring some new party before the Court, 
when, by death or otherwise, the original party has be- 
come incapable of prosecuting or defending the suit, 

1 Mitf. Eq. PI. by Jeremy, 34, 48 ; Cooper, Eq. PI. 43, 45; Wyatt, 
Pr. Reg. 78. 

a Mitf. Eq. PI. by Jeremy, 34, 50; Cooper, Eq. PI. 44, 50; Wyatt, 
Pr. Reg. 101. 

3 Mitf. Eq. PI. by Jeremy, 34, 61 ; Cooper, Eq. PI. 44, 52, 57, 58, 

4 Cooper, Eq. PI. 62 ; Mitf. Eq. PL by Jeremy, 35. 

5 Mitf. Eq. PI. by Jeremy, 35, 38 ; Cooper, Eq. Pi. 6«. 



20 EQUITY PLEADINGS. [CH. II. 

those Courts, they will first pass under our considera- 
tion. 

^ 23, An original Bill, praying relief, is (as we have 
seen) founded upon some right claimed by the party 
plaintiff, in opposition to some right claimed, or wrong 
done, by the party defendant. In order to enable the 
Court to understand the case, and to administer the 
proper remedial justice, as well as to apprize the oppo- 
site party of the nature of the claim, and of the redress 
asked, and to enable him to make the proper defence 
thereto, it would seem indispensable, that the Bill 
should contain a clear and exact statement of all the 
material facts. It should, therefore, show, with rea- 
sonable certainty, the rights of the plaintiff; the man- 
ner, in which he is injured ; the person, by whom it is 
done ; the material circumstances of the time, place, 
manner, and other incidents ; the particulars, in which 
he wants the assistance of the Court, or (in other 
words) the relief, which he seeks ; the prayer therefor, 
and also that the defendant may answer upon oath the 
matters charged against him ; and lastly, that the case 
as stated, and the relief as asked, are properly within 
the jurisdiction of a Court of Equity.* 

§ 24. On the other hand, the plaintiff need not, and, 
indeed, should not, state in the Bill any matters, of 
which the Court is bound judicially to take notice, or 
is supposed to possess full knowledge. Hence it need 
not state matters of law ; or legal presumptions ; or 
recite public acts or laws ; or aver facts, which the 
Court are bound judicially to know ; such as the divis- 
ions of counties ; the recognition of foreign govern- 
ments by our own ; the course of practice or proceed- 
ings in the Court itself; or any other facts of a like 

1 Mitf. Eq. PI. by Jeremy, 37 ; Cooper, Eq, PL 5. 



22 EQUITY PLLADINGS. [CH. II. 

presented and unfolded, is also important to be ma- 
turely considered ; for in Equity, as well as in Law, 
there is a regular order and method, in which the 
pleadings should display the grounds of the suit ; and 
forms are sometimes essential to the promotion of real 
justice between the parties, not only as the means of 
presenting rights with certainty and clearness, but also 
of vindicating and securing them by just limitations, 
and definite and expressive phraseology. The forms 
of pleadings in Equity have, indeed, undergone many 
alterations in different ages, and many improvements 
have, from time to time, been engrafted on them. 
Lord Coke's remark is well founded in this, as well as 
in many other cases of scientific invention ; JWiil simtU 
inventum est et perfectum.^ The pleadings in Equity, 
although framed with a regard to certainty and uni- 
formity, were always, in their style and character, of a 
more liberal and less technical cast than those at the 
Common Law. At first, however, they were somewhat 
loose and general in their texture. But they have 
gradually attained a high degree of exactness and ac- 
curacy of statement ; and, without being positively 
bound up in mere technical niceties and subtleties, they 
have become subjected to many rules of an artificial, 
although useful, establishment,* These will hereafter 
be examined at large. 

§ 26. In its modern structure, a Bill is, or may be, 
composed of nine parts. The first part is the Direc- 
tion or Address of the Bill to the Court, from which it 
seeks relief. This address, of course, contains the ap- 
propriate and technical description of the Court, and 
must be varied accordingly.^ The second part is the 

1 Co. Litt. 230, (a) ; Cooper, Eq. PI. 8. 2 Ante, ^ 12. 

3 Mitf. Eq. PI. by Jeremy, 42 ; Cooper, Eq. PI. 9 ; Barton's Suit in 
Eq. 26, 27. In England, when the Bill ifl in Chancery, it is addressed to 



24 EQUITY PLEADINGS. [CH. IT. 

"Humbly complaining, sheweth unto your Lordship 
(or to your Honor, or Honors, as the case may be), 

your Orator, A. B., of , esquire."* In this part, also, 

are sometimes contained the names and appropriate 
descriptions of the parties made defendants, although 
they are now usually found in the next succeeding 
part. The object, in each case, of giving the names 
and descriptions of the parties, is to enable the Court, 
and the other parties in interest, to know, where and 
to whom they may resort to compel obedience to any 
order or process of the Court, and especially to an order 
for the payment of costs, as well as to furnish distinct 
means of decision, in all future controversies, in regard 
to the subject-matter and the identity of the parties.* 
^ 27. The third part is the Premises^ or, as it is 
more usually styled, the Stating-part of the Bill, which 

ant is '* a citixexi of New Hampshire/' On account of the omission of 
such an allegation, a great many cases, carried by appeal to the Supreme 
Court of the United States, have been dismissed for want of jurisdiction, 
as it has been held, that the jurisdiction of the Court must be apparent 
on the record. Bingham v. Cabot, 3 Ball. R. 383 ; Jackson v. Ashton, 
8 Peters, R. 148. See Lord Coningsby's Case, 9 Mod. R. 95. 

1 Barton's Suit in Eq. 29, 30 ; Van Hey. Eq. DraAs. 3 ; 1 Mont. Eq. 
PI. 76, note (e) ; 3 Wooddes. Lect. 55, p. 368, 369. 

» Mitf. Eq. PL by Jeremy, 42, 43 ; Barton's Suit in Eq. 30, note (1) ; 

1 Mont. Eq. PI. 76, and note. The usual description of the plaintiff is, 

" Your Orator, A. B., of , in the County of , and State of , 

esquire." If the suit is in the Circuit Court of the United States, it is 
added, '^ and a citizen of the same State." The like description is given 
as to the name and place of abode, title, profession, or business of the de- 
fendant, viz. ** C. D., of , in the County of , &c., merchant," &c. 

See 1 Montague, Eq. PI. 76, and note (/). See Albretcht v. Sussman, 

2 Ves. & Beam. 323. In what manner the omission to make a proper 
description of the parties, as to places of abode, &c., is to be taken advan- 
tage of, seems to be a matter of some doubt. Mr. Montague says, that 
Lord Redesdale, in the first edition of his Treatise on Equity Pleadings, 
said, that a demurrer would hold ; but that statement is omitted in the 
subsequent editions, which leads to the supposition, that his Lordship, 
upon further reflection, thought differently. If a special demurrer would 
not be proper, perhaps a plea, in the nature of a plea in abatement, might 
be the proper mode to enforce the objection. 



26 EQUITT PLEADINGS. [CH. II. 

charge or statement, however, of the matter of fact is 
sufficient ; and it is not necessary to charge minutely 
all the circumstances, which may conduce to prove 
the general charge; for these circumstances are prop- 
erly matters of evidence, which need not be charged 
in order to let them in as proofs.^ Thus, under a Bill 
to set aside an award for fraud and partiality, a gener- 
al charge of the fraud or partiality will authorize the 
plaintiff to give evidence of circumstances tending to 
establish it, although those circumstances are not 
charged in the BilL* 

§ 29. The fourth part is what is commonly called 
the Confederating part of the BilL It contains a gen- 
eral allegation or general charge of a confederacy be- 
tween the defendants and other persons to injure or 
defraud the plaintiff. The usual form of the charge is, 
that the defendants, combining and confederating to- 
gether, and with divers other persons as yet to the 
plaintiff unknown, but whose names, when discovered, 
he prays may be inserted in the Bill, and they be 
made parties defendants thereto, with proper and apt 
words to charge them with the premises, in order to 
injure and oppress the plaintiff in the premises, do ab- 
solutely refuse, &c. or pretend, &c.* The practice of 



Sidney v, Sidney, 3 P. Will. 276 ; Wa^kyns «. Watkyns, 2 Atk. 96 ; 
Whaley v, Norton, 1 Vern. R. 483 ; Clarke v. TurBton, 11 Ves. 240 ; 
Houghton V. Reynolds, 2 Hare, R. 264, 266. 

1 Chicot V. Lequesne, 2 Ves. 317, 318 ; Wheeler «. Trotter, 3 
Swanst. 177. But see Post, ^ 265, a, 

9 Chicot V. Lequesne, 2 Ves. 318 ; Clarke v. Periam, 2 Atk. 337. Bot 
sec Post, ^ 265, a. 

3 Mitf. Eq. PI. by Jeremy, 40, 43 ; Cooper, Eq. PL 9 ; Barton's Suit 
in Eq. 33 ; Van Hey. Eq. Drafts. 4 ; 1 Mont. Eq. PI. 77, asd note (t). 
The form given in Van Hey thuy sen's Eq. Drafts. 5, is as follows ; 
*' But now so it is, may it please your lordship, that the said R. H. 
combining and confederating with divers persons [or, if there are several 
drfendtaUs^ then thus : combining and confederating with the siiid C. H. 



28 EQUITY PLEADINGS. [CH. II. 

inserted in Bills, yet it is treated as mere surplusage ; 
so much so, that it is said, that the general charge of 
combination need not be (although it usually is) denied 
or responded to in the answer, when charged in the 
Bill ; for it is mere impertinence.* 

^ 30. If combination or confederacy is meant to be 
relied on, as a ground of equitable jurisdiction, it can 
be only in special cases ; and then it must be specially 
and not generally charged, to justify an assumption of 
jurisdiction.* In the case of a Peer, this general 
charge is never inserted in the Bill, either from re- 
spect to the peerage, or from an apprehension, that 
such a charge might be construed to be a breach of 
privilege of the Lords ' as a sort of scandaJum magna" 
tum.^ 

1 Mitf. Eq. PL by Jeremy, 40, 41, 43 ; Oliver v. Haywood, 1 Anst. 
82 ; Wyatt, Pr. Reg. 63. See Rule 2l8t of the Equity Rules of the Su- 
preme Court of the United States, January Term, 1842. Post, ^ 34, note. 

» Mitf. Eq. PI. by Jeremy, 41. 

3 Mitf. Eq. PI. by Jeremy, 41 ; Barton's Suit in Eq. 33, note ; Cooper, 
Eq. PI. 10, 11. 

^ The following passage from Lord Redesdale's Treatise, contains a full 
exposition of the nature and character of this clause, and therefore is here 
given at large. <' It is the practice to insert in a bill a general charge, that 
the parties named in it combine together, and with several other persons 
unknown to the plaintiff, whose names, when discovered, the plaintiff prays 
he may be at liberty to insert in the bill. This practice is said to have 
arisen from an idea, that without such a charge parlies could not be added 
to the bill 'by amendment ; and in some cases perhaps the charge has been 
inserted with a view to give the court jurisdiction. It has been probably 
for this reason generally considered, that a defendant demurring to a biU 
comprising persons, whose interests are so distinct, that they ought not 
to be made parties to the same bill, ought to answer the bill so far as to 
deny the charge of combination. The denial of combination, usually 
inserted as words of course at the close of an answer, is a denial of un- 
lawful combination ; and it has been determined, that a general charge (^ 
combination need not be answered. An answer to a charge of unlawful 
combination cannot be compelled ; and a charge of lawfdl combination 
ought to be specific to render it material. For where persons have a 
•common right, they may join together in a peaceable manner to defend 
that right ; and though some of them only may be mied, the rest may .oon- 



30 EQUITY PLEADINGS. [CH. IK 

^ 32. Care, however must be takeo', that the Equity 
of the plaintiflPs case should be fully averred in the 
stating part of the Bill ; for if it should be stated only 
in the charging part of the Bill, and thus consist only 
in the pretences, the charges in answer to those pre- 
tences, and the admissions, it has been held not to be 
sufficient ; for there ought first to be an equitable case 
averred; and then the pretences and charges may 
properly be introduced to support it,* Therefore, 
when a Bill prayed an account of rents and profits, 
and stated the plaintifi* to be the heir at law, and the 
defendant to be in possession, and then suggested, that 
the defendant pretended to claim under some fine and 
demise ; and charged, that if any such existed, the 
testator was insane at the time, which the defendant 
at other times admitted : the Bill was held on demur- 
rer to be unsupportable.^ 

^ 32, a. Perhaps the principle here suggested is 
somewhat too broadly stated. It would seem to be 
regularly true, where the defendant sets up certain 
pretences, followed by a general charge, that the 
contrary of those pretences is the truth ; for such a 
general denial is not of itself an allegation or aver- 
ment of the facts, which make up the counter state- 
ment ; but the £cicts themselves should be specifically 
averred, otherwise the charge would be defective-. 
But if the material facts are specifically averred, there 
does not seem to be any positive rule of law which 
requires, that those facts should be averred in the 



and at other times he alleges and pretends, that, &c., &c.; whereas your 
orator chargeth the truth to be (or the contrary thereof to be the truth), 
&c., &c." See also Mitf. £q. PI. by Jeremy, 40, 41, 43 ; 1 Mont. £q. 
PI. 77, and note (m). 

1 Flint V. Field, 2 Anst. R. 543. 

3 Ibid. Cooper, £q. PI. 11. 



32 EQUITT PLEADINGS. [CH. II. 

IS properly and fully set forth in the stadng part of the 
Bill, all the objects, intended to be accomplished by 

the Chancery Commissioners, of the 9th of March, 1826 (Report of Ch. 
Commiss. p. 106, Propos. 157), uses this language with reference to fic- 
tions in injunction causes : *' An erroneous notion seems to have taken 
possession of the minds of some persons, that counsel are, in a particular 
class of causes at least, justified by the existing practice of the Court in 
inventing a case for the plaintiff*, or, in other words, in framing a state- 
ment, which has no existence whatever, in point of fact, though it is the 
case gravely put forward by the Bill, and though the defendant is as 
gravely called upon to answer it. If this were the practice of the Court 
of Chancery, it would call for the most severe reprehension, and it would 
obviously require an alteration. But, as the notion, although to a very 
limited extent, has prevailed, however inconsistent in itself with the rule 
of the Court, which requires the signature of counsel to the Bill, and 
however incompatible with the best interests of justice, and with the 
honor of the bar, it seems expedient to provide, by an express resolution, 
that no counsel should prepare or settle a Bill, without written instruc- 
tions from the solicitor, and that the signature of counsd to a Bill should, 
in future, be considered as a certificate, that, assuming the instructions to 
be correct, it is not unfit, that a Bill should be filed." Sir Lancelot Shad- 
well's Answer to Question 271, in the Appendix to the Report, p. 206, 
shows, that the practice had been pursued by some eminent counsel. 
Mr. Gresley, in his Treatise on Evidence in Equity (p. 14, 15), has intro- 
duced the following remarks on the subject of fictitious charges, to elicit 
facts in general bills : — '* The latitude, which b and ought to be allowed 
for misstatements in the bill, inserted for the purpose of grounding in- 
terrogatories upon them, is full of perplexing considerations. To state 
deliberately as facts, matters, which are doubtful or untrue, would appear 
palpably unjustifiable ; but, as this is a necessary preliminary for putting 
many questions to the defendant, which he ought, for the furtherance 
of justice, to answer, it has become a practice, which the courts do not 
check : at least, they merely take care, that no scandal or impertinence 
is inserted, and sometimes, when the case has been very unfairly stated, 
they visit the plaintiff* with costs. In suits, where the common injunc- 
tion is prayed, the courts have been considered by a high authority to 
sanction the introduction of fiction, and the Chancery Commissioners, 
after many careful inquiries on the subject, ventured to suggest no more 
than that the plaintiff" or his solicitor should ' annex an affidavit, stating, 
that the Bill is not filed for delay, and only for the purpose of obtaining 
equitable relief, or discovery in aid of a proceeding at law.' It is true, 
that injunction suits seek, besides discovery, another relief peculiar to 
themselves, but the principle contained in the proposition is a good one 
and applicable in all cases, in which discovery is sought. The evidence 
of Bilr. Heald, who suggested such an affidavit, gives, as reasons for not 



34 EQUITT PLEADINGS. [CH. II. 

that the acts com{dained of are contrary to Equity, and 
tend to the injury of the plaintiff, and that he has no 
Remedy, or not a complete remedy, without the assist- 
ance of a Court of Equity.^ But this clause is wholly 
unnecessary, for it will not of itself give jurisdiction to 
the Court. If the case made by the Bill is otherwise 
clearly of equitable jurisdiction, the Court will sustain 
it, although the clause is omitted. If, on the contrary, 
the case so made is not of equitaUe jurisdiction, the 
Bill will be dismissed, notwithstanding such an aver- 
ment is made in it. For the Court cannot assume 
any jurisdiction, except upon cases and principles, 
which clearly justify its interposition.* At best, there- 
fore, the clause is a mere superfluity.' 

1 Mitf. Eq. PI. by Jeremy, 43, 44 ; Cooper, Eq. PI. 10, 11 ; 1 Mont. 
Eq. PI. 78 ; Barton's Suit in Eq. 27, 28. The usual formulary is, " AU 
Tvhich actings, doings, and pretences (of the said confederates), are con- 
trary to equity and good conscience, and tend to the manifest [wrong] 
injury and oppression of your orator in the premises. In tender considera- 
tion whereof, and for as much as (or, for that) your orator is (entirely) 
remediless in the premises, according to (or, by) the strict rules of the 
Common Law, and can only have relief (or, is relievable only) in a Court 
of Equity, where matters of this nature are properly cognizable (and re- 
lievable) ; To the end, therefore," &c. 1 Mont. Eq. PI. 78, note (p); 
Barton's Suit in Eq. 36 ; Van Hey. Eq. Drafts. 6. 

» Mitf. Eq. PI. by Jeremy, 44 ; Cooper, Eq. PI. 10, 11 ; Barton's Suit 
in Eq. 36, and note ; 1 Mont. Eq. PI. 78 ; Bateman v. Willoe, 1 Sch. & 
Lefr. 204. 

3 The 2l8t Rule of the Equity Rules of the Supreme Court of the 
United States, January Term, 1842, applies to the confederacy, the 
charging, and the jurisdiction parts of the Bill, and is as follows ; '* The 
plaintiff, in his Bill, shall be at liberty to omit, at his option, the part 
which is usually called the common confederacy clause of the Bill, aver- 
ring a confederacy between the defendants to injure or defraud the plain- 
tiff; also what is commonly called the charging part of the Bill, setting 
forth the matters or excuses, which the defendant is supposed to intend to 
set up by way of defence to the Bill ; also, what is commonly called the 
jurisdiction clause of the Bill, that the acts complained of are contrary to 
equity, and that the defendant is without any remedy at law ; and the 
Bill shall not be demurrable therefor. And the plaintiff may, in the nanar 
tyre or stating part of his Bill, state and avoid by counter-averments, at 



36 EQUITY PLEADINGS. [CH. II. 

cumstances, which may be attendant upon it, and the 
variations, to which it may be subject, with a view to 
prevent evasion, and compel a full answer.^ Hence it 
is called the interrogating part of the Bill, since it 
questions the defendant as to the truth of the several 
statements and charges in the Bill.^ 

§ 36, The interrogating part of the Bill being orig- 
inally designed and used to compel a full answer to 
the matters contained in the former part of the Bill, it 
must be founded on these matters. Therefore, if 
there is nothing in the prior part of the Bill to warrant 
a particular interrogatory, the defendant is not com- 
pellable to answer it. This rule is indispensable for 
the preservation of due form and order in the plead- 

^ Mitf. Eq. PI. by Jeremy, 44, 45 ; Barton's Suit in £q. 37, and note 
(2) ; Cooper, Eq. PI. 12. 

3 Barton's Suit in Eq. 28-37, and note ; Cooper, Eq. PI. 12. The 
usual formulary is, *' To the end, therefore, that the said A. B. and the 
rest of the confederates when discovered, may, upon their several and 
respective corporal oaths, full, true, direct, and perfect answer make, to 
all and singular the matters herein before stated and charged (or, to all 
and singular the premises, or, to all and singular the charges and matters 
aforesaid), as fully and particularly, as if the same were hereinafter re- 
peated, and they thereunto distinctly interrogated (or, as fully in every 
respect, as if the same were here again repeated, and they thereunto par- 
ticularly interrogated) ; and that not only as to the best of their respective 
knowledge and remembrance, but also as to the best of their several and 
respective information, hearsay, and belief (or, according to the best of 
their respective knowledge, information, and belief) ; and, more especially, 
that they may answer and set forth whether, &c. or they may set forth 
and discover, whether they do not know, have heard, or are informed, 
and in their conscience believe that," &c. &c. Van Hey. Eq*. Drafts. 7 ; 
Barton's Suit in Eq. 37 ; 1 Mont. Eq. PI. 78, note (t). In the ancient 
forms, the Bill, after the general prayer, that the defendants may upon 
oath make a full, true, and perfect answer to all the charges and matters 
contained in the Bill, closed with a prayer for relief and process without 
putting any special interrogatories, as this general requisition was sup- 
posed sufficient to compel a full answer. Barton's Suit in Eq. 37, note 
(2). See the 42d, 43d, and 44th of the Equity Rules of the Supreme 
Court of the United States, January Term, 1843, cited Post, ^ 846, 
note. 



38 EQUITY PLEADINGS. [OH. II. 

and, under an allegation of a fact, interrogatories may 
be put as to the incidental circumstances, although they 
may not as to any distinct subject.^ Thus, for exam- 
ple, if there is a general charge, that money has been 
paid as the consideration of a contract, that general 
charge will entitle the plaintiff to put all questions 
upon it, which are material to make out, that it was 
paid, how, when, where, by whom, on what account, 
in what sums, &c. &c. ; and it is not necessary to load 
the Bill by adding to the general charge, that it was 
paid, all the circumstances, in order to justify an inter- 
rogatory as to the circumstances.* So, if a Bill is filed 
against an executor for an account of the personal es- 
tate of the testator, upon the single charge, that he has 
proved the will, may be founded every inquiry, which 
may be necessary to ascertain the amount of the estate, 
its value, the disposition made of it, the situation of 
any part remaining undisposed of, the debts of the tes- 
tator, and any other circumstance leading to the ac- 
count required.^ 

^ 38. It is clear from what has been already said, 
that the interrogating part of the Bill is not absolutely 
necessary ; because, if the defendant fully answers to 
the matters of the Bill, with their attendant circum- 
stances, or fully denies them in the proper manner on 
oath, the object of the special interrogatories is com- 

1 Ibid. ; Ante, ^ 28. 

» Faulder'u. Stuart, 11 Ves. R. 296, 302; Bullock v. Richardson, 11 
Ves. R. 375 ; 1 Grant, Ch. Pr. 37. 

8 Mitf. Eq. PI. by Jeremy, 45 ; Cooper, Eq. PI. 13 ; 1 Mdiit. Eq. PI. 
79, and note (s), I have here used the very words of Lord Redesdale 
(which are elsewhere quoted as direct authority to this point) ; but it 
seems to me, that the proposition is stated too broadly ; and that there 
should be a charge, not only that the executor had proved the will, but 
that he had received assets, in order to found the interrogatories. See 
Barton's Suit in Eq. 32-36. 



40 EQUITY PLEADINGS. [CH. II. 

truth, without such interrogatories, it would be im- 
practicable, in many cases, to extract from a reluctant 

interrogation at the end of each, to this effect ; whether it be not true as 
stated, or in some, and what other manner! — Those are not the words 
commonly used. The pleader is obliged to vary the manner of the ques- 
tion. It is Tery difficult to explain, unless a man is trjring his skill as a 
draftsman against an unwilling defendant, how difficult it is ofien to ex- 
tract the truth. I am certain in such cases the truth could not be ex- 
tracted, except by very particular interrogatories. 

'' Q. 9. — Do you then apprehend, that it would not answer the same 
effect, if a form of words could be devised, generally referring, once for 
all, to the several matters before stated, and calling upon the defendant 
to answer them, not only circumstantially, but to speak to any variance, 
within his knowledge or belief, from the circumstances, as stated 1 — I do 
not think it would be possible to frame any set of words, which would an- 
swer that purpose, when we have ?u unwilling defendant to deal with. 

'* Q. 10. — Is it not, in your apprehension, a general and standing role 
in all courts of justice, without its being so expressed, that a man, who is 
called upon to answer any matters stated against him, shall answer them 
in the way pointed out, not according to the circumstances as stated, but 
according to any variation of circumstances, not affecting the substance of 
what is so charged 1 — I believe that is what every court of justice would 
expect of an honest man, giving his testimony in any shape whatsoever ; 
but, unfortunately, in the Court of Chancery, we have very oflen to deal 
with men, who are not men of that description. Besides that, very often 
the defendants are so ignorant, and sometimes so prejudiced with their 
views of the case, that without a wish to disguise the truth, they will 
look at and consider the allegation in a very different way from that in 
which they would, if they were indifferent persons ; and therefore rather 
state their own view of the case, than give a direct answer, if no ques- 
tion is put. 

*' Q. 11. — If any particular question should be omitted in the interro- 
gating part of a Bill, or should not be put with sufficient precision, is it 
sufficient for the defendant, when challenged for not answering with 
sufficient particularity, to allege, that the question was no more particu- 
lar than his answer! — That is a question, on which I have always had 
a very great doubt and difficulty ; I never could bring my mind com- 
pletely to any general rule upon the subject. When arguing exceptions 
before the master, the master has frequently said. It is your fault, that 
you have not gone further ; your interrogatories should be much mors 
particular. 

** Q. 12. — Supposing the rule of the court to be fixed one way, that a 
man shall not avail himself of any want of particularity in the question, 
to cover any want of particularity in his answer, do not you suppose 
such a rule would go a great way to prevent the necessity for such par- 



42 EQUITY PLEADINGS. [CH. II. 

§ 39. The practice of putting special interrogatories 
seems to have been derived from the Civil Law. By 
that law, when the plaintiff had put in his positions or 
narrative of his case, the defendant was to put in his 
contestations or negations of those positions ; and the 
plaintiff had liberty to examine the defendant upon 
interrogatories to supersede the necessity of proof. 
These were called the libellus articulaim ; which was 
generally put in after the first act, or proceeding, 
where the defendant had answered the positions.^ In 
Chancery the positions and the libellus articulatus are 
thrown into one Bill. But still they must, as in the 
Civil Law, relate the one to the other ; and hence the 
rule, that the interrogatories must arise out of the facts 
alleged in the Bill, may be readily traced back to its 
Roman source.' 



per) ; * have the goodness to read them, and let ine now know, which 
you wish to stand.' He took them, and read them, and they were a pal- 
pable contradiction to each pther. He thanked me for my attention to 
the situation in which he would have been, and altered the one, as the 
fact was. Now, that gentleman, I believe, did not wish to mislead me ; 
but his attention being directed at one time to one view of the case, and 
at another period to another view of the case, he had fallen into an unin- 
tentional mistake ; and I am persuaded, that, if the interrogatories are 
not put pointedly, there will be many mistakes of that kind. If those* 
mistakes did not occur, it would very frequently happen, that even if a 
party wished to state a fact as well as he understood it, you would not 
get at the whole truth, unless you put the question to him in detail. la 
Bills, which are chiefly statements of deeds, there would be very little 
difficulty ; but, whenever a pleader comes to a complicated statement of 
facts, it is necessary to be very precise in the interrogatories.^' Report 
of Chancery Commissioners, 9th March, 1826, Appx. p. 1,2. 

^ Gilb. For. Rom. 90 ; Ante, ^ 14, and note. The proceedings in the 
Ecclesiastical Courts bear a close resemblance to those of the Civil Law. 
'* In the Ecclesiastical Courts," says Mr. Hare, '^ where the defendant is 
likewise required to make an answer or discovery upon oath, the answer 
is in a wholly distinct instrument from the responsive allegation, which 
contains the defence." Hare on Discov. 223. 

8 GUb. For. Rom. 90, 91; Id. 21-24,26,27, 44, 45; Ante, ^ 14, 
and note. 



44 EQUITY. PLEADINGS. [CH. II. 

^41. It has been said, that a prayer of general re- 
lief, without a special prayer of the particular relief, to 
which the plaintiff diinks himself entitled, will be 
sufficient, and that the particular relief, which the case 
requires, may at the hearing be prayed at the bar.* 
This, as a general rule, may be true; but it is not 
universal. Thus, for example, an injunction will not 
ordinarily be granted under a prayer for general re- 
lief; but it must be expressly prayed ; because the 
defendant might, by his answer, make a different case 
under the general prayer, from what he would, if an 
injunction were specifically prayed.* So, a writ of ne 

behalf of infants, Courts of Equity will grant relief upon any matter aris- 
ing upon the state of the case, though it be not particularly mentioned 
and insisted on and prayed by the Bill. Stapilton v. Stapilton, 1 Atk. 
R. 6 ; Attorney-General o. Jeanes, 1 Atk. R. 355 ; Attorney-General 
V, Gleg, 1 Atk. R. 356; Attorney-General v. Scott, I Yes. 418; At- 
torney-General V. Burk, 18 Yes. 325 ; Attorney-General v, Yivian, 1 
Russ. R. 335; Barton's Suit in Eq. 40. note (t). These cases, there- 
fore, constitute exceptions to the general rule. See also Attorney-General 
V. Jackson, 11 Yes. 371, 372 ; 2 Mont. Eq. PL note B. X. p. 120, 121 ; 
Mitf. Eq. PI. by Jeremy, 27, 39, and note (t) ; Id. 55, note (m) ; Colton 
V. Ross, 2 Paige, R. 390. 

1 Mitf. Eq. PL by Jeremy, 38, 39 ; Cooper, Eq. PL 14 ; Barton's Suit in 
Eq. 40, note (1). Wilkinson v. Beal, 4 Madd. R. 408 ; Cook v. Martyn, 
2 Atk. 3 ; Grimes v. French, 2 Atk. 141 ; Topham v. Constantino, Tam- 
lyn, R. 135 ; Manaton v. Molesworth, 1 Eden, R. 26, and note (b) ; Mitf. 
Eq. PL by Jeremy, 46, note (x) ; 3 Wooddes. Lect. 55, p. 372, 373. — 
In Cook V. Martyn, 2 Atk. 3, Lord- Hardwicke is reported to ha^e said ; 
*' Praying general relief is sufficient, though the plaintiff should not have 
been more explicit in the prayer of the Bill." And Mr. Robins^ a very 
eminent counsel, used to say, general relief was the best prayer next 
after the Lord's Prayer. In Dormer v. Fortescue, 3 Atk. 132, Lord 
Hardwicke quotes the same expression, and attributes it to a Mr. Dobbins, 
Quaere, which is the correct name? Mr. Eden, in his note to Manaton 
V. Molesworth, 1 Eden, R. 26, note (6), says it was Mr. Robins; and 
Lord Northington, in the same case, quotes the saying as a common one. 

* Savory v. Dyer, Ambl. 70, note ; Wright v. Atkins, 1 Yes. & B. 
314 ; 2 Story, Comm. on Eq. ^ 862, 863 ; Eden on Injunct. ch. 3, p. 
48 ; Id. Ch. 15, p. 321 ; 1 Smith, Ch. Pr. 45. And it seems, that the 
prayer for an injunction must not only be in the prayer of relief, but in 
the prayer of process. Wood v. Bradell, 3 Sim. R. 273 ; Hinde, Ch. Pr. 



46 EQUITY PLEADINGS. [CH. II. 

§ 43. On this and many other accounts, it has been 
very properly remarked, that the prayer of a Bill de- 
mands a good deal of consideration and attention ; and 
an accurate specification of the matters to be decreed 
in complicated cases requires great discernment and 
experience.* Where special orders and provisional 
processes are required, founded on peculiar circum- 
stances, such as writs of injunction, writs of ne exeat 
regnOy orders to transfer funds, or to preserve property 
pending the litigation, they are usually made the sub- 
jects of a special prayer.* Indeed, the frequent ap- 
plications made for amendments of the prayers of Bills 
is a proof at once of the value of special prayers, and, 
also, of the intrinsic difficulty of foreseeing all the exi- 
gencies, which may arise in the progress of a suit, 
which may require new relief. 

§ 44. The ninth part of the Bill is the Prayer of 
process^ to compel the defendant to appear, and 
answer the Bill, and abide the determination of the 
Court on the subject. Care must be taken in this 
part of the Bill to insert the names of all persons, 
who are intended to be made parties; for it is a 
general rule, that none are parties, although named in 
the Bill, againt whom process is not prayed.* The 



Suit in Eq. 41, note (1) ; Cooper, Eq. PI. 14 ; 3 Wooddes. Lect. 55, p. 
371 ; Colton v, Ross, 2 Paige, R. 396 ; Lloyd v. Brewster, 4 Paige, 
R. 637. 

1 Cooper, Eq. PI. 13 ; 3 Wooddes. Lect. 55, p. 372. 

9 Cooper, Eq. PI. 13, 14 ; Mitf. Eq. PI. by Jeremy, 46, 47 ; Barton's 
Suit in Eq. 41, note (2) ; Moore v. Hudson, 6 Madd. R. 218 ; Hinde, Ch. 
Pr. 17, 18. 

3 Cooper, Eq. PI. 16; Fawkes v. Pratt, 1 P. Will. 593; Windsor*. 
Windsor, 2 Dick. 707 ; Brasher t. Van Cortlandt, 2 John. Ch. R. 245. 
It is said, in Haddock v. Tomlinson, 2 Sim. & Stu. 219, not to be neces- 
sary to pray process against persons, who are charged in the Bill to be 
out of the jurisdiction. It was held, in Munoz v. De Tastet, 1 Beayan, 
R. 109, note, and recognized by the Master of the Rolls, in Brooks «. 



48 EQUITY PLEADINGS. [CH. II. 

England, a letter missive requesting the defendant to 
appear and answer the Bill is first prayed, and on his 
default the prayer of a subpoena.^ In the case of 
corporations aggregate, the process of subpoena is the 
same as in ordinary cases; but the Bill sometimes 
prays, that in case of their default to appear and 
answer the Bill, the writ of distringas may issue to 
compel them to do so.* In cases, where the writ of 

shall seem agreeable to equity and good conscience) ; and your orator 
shall ever pray." Barton's Suit in Eq. 41,42; 1 Mont. Eq. PI. 80, 
note (y) ; Van Hey. Eq. Drafts. 9 ; Hinde, Ch. Pr. 17, 18. When the 
Bill is only for discovery, or to perpetuate the testimony of witnesses, 
the clause following the words, '* to answer all and singular the prem- 
ises," is omitted, as no decree is asked or is proper. Barton's Suit in 
Eq. 43, note (1). 

^ In England, in case any defendant has privilege of peerage, or is a 
Lord of Parliament, a prayer for a letter missive to him, requesting him 
to appear and answer the Bill, is put in (as is stated in the text) before 
the prayer of process of suboepna. And the prayer of the latter is only 
in default of the defendant's compliance with that request. The usual 
form is, '* May it please, &c. to grant unto your orator your Lordship's 
letter missive, to be directed to the said defendant, the Earl of, &c., desir- 
ing him to appear and answer your orator's Bill, or in default thereof, 
his Majesty's most gracious writ of subpcena," &c. Barton's Suit in Eq. 
42, note ; 1 Smith, Ch. Pr. 75, 76, 97. In case the Attomey-Greneral, 
as an officer of the crown or government, is made a defendant, the Bill, 
instead of praying process against him, prays, that he may answer it upon 
being attended with a copy. Mitf. Eq. PI. by Jeremy, 46 ; Cooper, Eq. 
PI. 16, 17 ; Barton's Suit in Eq. 42, note ; Com. Dig. Chancery, D. 3 ; 
Gilb. For. Rom. 66-67. 

» Cooper, Eq. PI. 16, 17. Mr. Cooper (Eq. PI. 16, 17) says, that " In 
the case of a corporation aggregate, where the answer is under the com- 
mon seal, the Bill must pray, that a writ, called a writ of distringas, 
may issue under the great seal, which is for the purpose of distraining 
them by their goods and chattels, rents and profits, until they obey the 
summons or direction of the Court." From this language it would seem 
indispensable, in a suit against such a corporation, to insert a prayer for 
such a writ. But I cannot find any sufficient authority for such a position. 
It seems no more necessary, than it would be in common cases to pray 
for an attachment and other processes, when the party does not appear 
and answer ; and this is never done. The right to the ulterior processes 
results from the general authority of the Court to compel obedience to its 
own commands. The distringas is to compel the corporation to answer as 



50 EQUITY PLEADINGS. [CH. II. 

by that law.^ And, perhaps, the authority to issue 
it was derived from the statute of West. 2, ch. 24, 
which gave authority to the Chancellor to issue new 
writs in cases, where the existing writs did not afibrd 
a remedy for cases, falling under the like right.^ It 
bears a close analogy, also, to the citation, or voccUio 
injus^ of the Civil and Canon Law; and, considering 
that the Chancery was in those early times in the 
possession of the ecclesiastical dignitaries, it is by no 
means improbable, that it was modelled upon the basis 
of the latter.' 



1 GUb. For. Rom. 37. 

9 Bartoa'8 Suit in Eq. 61, note (1) ; 3 Black. Comm. 52, 53. See 3 
Reeves, Hist, of Law, IdS ; Treatise of Subpcena in Harg. Law Tracts, 
324,325,332,333; Id. 301. 

3 See Halifax, Anah of Civ. Law, ch. 9, p. 109, ch. 10, p. 122 ; Con- 
set's Pract. 26 ; Barton's Suit in Eq. 61, note (1) ; Gilb. For. Rom. 21, 
26, 27. Mr. Barton, in hb Treatise on Suits in Equity, p. 61, not^ (1), 
has made the following remarks on the writ of subpcena : *' This writ 
answers to the CUatio certis de causis in the Civil Law (see Gib. Cod. T. 
xliv., c. 2). It was first applied to the purpose of compelling an appear* 
ance to a suit in Equity in the reign of Richard U. when Bishop Wal- 
tham, then Chancellor, appears to have adopted it in pursuance of Stat. 
West. 2, c. 24, which (to prevent the multiplicity of petitions to Parlia- 
ment for the formation of writs adapted to such new cases as were daily 
arising) enacted that ' quotiescunque de catero evenerit in Cancellariay quod 
in uno casu reperiiur breve, et in consimili casu cadente sub eodemjure^ ei 
aimili indigente remedio, non reperitur, concordent clerici de Ckmcellaria in 
brevifaciendo.^ This writ was always vehemently opposed by the Coorts 
of Common Law; -and having sometimes, it seems, been issued upon 
groundless allegations, it was enacted by 15 Hen. VI. c. 4, at the insti- 
gation of the Commons, that no writ of subpcena should be granted in 
future, till surety had been found to answer to the party aggrieved for his 
damages and expenses, in case the plaintiff failed to make good the 
charges in his Bill. This security however has long fallen into disuse (a 
matter there is frequently reason to lament) , and is now required only in 
cases^ where the plaintiff either resides abroad, or is likely soon to quit 
the kingdom. 

'* A custom formerly prevailed (though contrary to the more ancient 
practice) of issuing the subpcena before the Bill had been filed. This 
gave rise to the statute of 3 and 4 Ann. c. 16, by which it is provided, 
that * no subpcena, or any other process for appearance, do issue out of 



52 EQUITY PLEADINGS. [CH. II. 

^ 47. We may conclude, what is here said on the gen- 
eral structure and form of a Bill, by the remark, that 



answer, one really is obliged, I think, to come to that conclusion : I 
never could bring my mind to any other conclusion. 

*' Q. 25. — After all the pains you have taken in framing a Bill, hare 
you not found yourself frequently disappointed, and obliged to reframe 
your Bill, in order to obtain a full answer? — Certainly. And in cases, 
where a defendant is desirous to give a full answer, where the answer is 
to be obtained first through the medium of a solicitor, who perhaps has 
not time to attend to this business himself ; next, by extracting it from a 
man, who, if a man of moderate intelligence, is still not used to technical 
language, or used to give those precise answers, which a witness ought 
to do ; if you do lay the positive questions before those persons, you will 
seldom be able (even if they wish to give you all the information they 
possess) to get it from them ; you will get a great deal of information, 
probably, that you do not want, but they will omit very material points ; 
and it is not till instructions are sent back two or three times, pointing 
their attention particularly to the interrogatories, and writing down, per- 
haps, the interrogatory with your own hand, or the essential part, that 
you are able to get out the truth. I recollect one case, which occurred to 
myself in practice ; I could not get my client to answer a particular part 
of a Bill. The parties took exceptions more than once ; they thought we 
were keeping back something or other. At last my client, the solicitor, 
said to me, ' Really, I do not know how to give you any further informa- 
tion.' I said, ' You must ; the other parties insist upon it; and if you 
cannot give further information, your client must go to the Fleet, and 
remain till he does give further information.' At last I prevailed upon 
him to set seriously to the business, and he procured information, which 
decided the case : but it decided it in favor of my client. 

** Q. 26. — As it must frequently happen, that the statements of a Bill, 
either in the whole or in great part, are such, that beforehand the pleader 
perfectly well knows the defendant is incapable of giving an answer. 
When that case occurs, would it not be sufficient, as a general rule, 
that the plaintiff should confine his interrogatories to those points only, to 
which he knows, or suspects, or believes the defendant is able to give an 
answer ? — The difficulty in doing that, is this : The formal parts of a Bill 
one is obliged to leave to clerks, or to junior pupils, and it would be 
almost impossible to get through business with the despatch required, if 
we were obliged to look into it with such minuteness as to fix on those 
parts, if they could be distinguished. 

'* Q. 27. — Would it be attended with advantage, if the pleader were to 
pencil, for the use of his clerk, those parts, to which he wishes to confine 
his interrogatories? — I do not think it could be done. If the point is 
material to the case made against the defendant, whether he knows it er 



64 EQUITY PLEADINGS. [CH. II. 

of this rale is, to secure regularity, relevancy, and de- 
cency in the allegations of the Bill, and the responsi- 
bility and guaranty of counsel, that upon the instrac- 
tions given to them, and the case laid before them, 
there is good ground for the suit in the manner, in 
which it is framed. Hence it is, that counsel are held 
responsible for the contents of the Bill ; and if it con- 
tains matter, which is irrelevant, impertinent, or scan- 
dalous, such matter may be expunged ; and the counsel 
may be ordered to pay costs to the party aggrieved,* 
And this duty has been enforced by several pointed 
general orders of the Court of Chancery.^ 

^ 48. The subject of scandal and impertinence in a 
Bill, as well as the general rules and principles, which 
apply to the material allegations of a Bill, as to cer- 
tainty, and accuracy, and fulness of statement, and 
other matters, will be more fully considered hereafter.' 
It is sufficient, in this place, to have explained the 
general nature and character of this part of Equity 
Pleadings/ Our next inquiry will be, as to the persons, 
who may sue, and be sued, by a Bill in Equity, and 
the manner, in which the suit is to be brought, and 

1 Milf. Eq. PI. by Jeremy, 48 ; Cooper, Eq. PL 18, 19 ; GUb. For. 
Rom. 210, 211 ; Emerson v. Dallison, 1 Ch. H. 194; Supra, note, 
a Beames, Ord. in Chanc. 25, 69, 70, 165 - 167. 

3 Post, ^ 266, 863. 

4 As to scandal and impertinence in interrogatories to witnesses, and 
also in the answers of witnesses, it may be here stated, that the Court 
will refer the depositions to a Master to ascertain such matters, and if he 
reports, that there is such scandal and impertmence, the same will be 
ordered to be expunged from the depositions, and the costs paid by the 
offending party. Thus, if there has been impertinence and scandal in 
the interrogatories, the solicitor, who drew them, may be required to pay 
the costs. Post, ^ 266-268. If scandal or impertinence is in the 
answer of witnesses, not specifically called for by the interrogatories, as 
in their answers to the general interrogatory, the witnesses will be liable 
to pay the costs. Gude v. Mumford, 2 Younge & Coll. 445-448. 
Post, \ 880, a. 



56 EQUITT PLEADINGS. [CH. III. 



CHAPTER III. 

BILL IN EQUITY PARTIES, WHO HAVE CAPACITY TO 

SUE AND BE SUED. 

^ 49. In the &st place, then, let us consider, who 
may sue in Equity. The King or Government may 
(as has been already stated) sue in a Court of Equity, 
not only in suits strictly on behalf of the Crown or 
Government, for its own peculiar rights and interests ; 
but also on behalf of the rights and interests of those, 
who partake of its prerogative, or claim its peculiar 
protection.^ In all such cases the suit is instituted 
by the proper public officer, to whom that duty is en- 
trusted ; and this ordinarily is the Attorney-General.^ 
Where the suit immediately concerns the rights and 
interests of the Crown, the public officer sues in his 
own official name without uniting that of any other 
person. But where the suit does not immediately 
concern the rights or interests of the Crown, but only 
of those, who partake of its prerogative, or are under 
its peculiar protection, or the subject matter is publici 
juris, there the Attorney- General sues generally (but 
it is not absolutely necessary), at the relation of some 
other person, who is named as relator in the Bill, and 
who becomes thereby responsible for the costs.^ 

1 Ante, ^ 8 ; Mitf. Eq. PI. by Jeremy, 4, 21 - 24 ; Cooper, Eq. PI. 21, 
22, 101, 102; Attorney-General v, Vernon, 1 Vem. R. 277, 282; 
S. C. 370, 1 Mont. Eq. PI. 34. Edwards on Parties in Equity, 60, 61. 
Calvert on Parties, ch. 3, ^ 26, p. 301 - 308. 

9 Ibid. 

3 Ante, ^ 8 ; Mitf. Eq. PI. by Jeremy, 22-24 ; Cooper, Eq. PI. 21, 
22, 101, 102 ; Attorney-General v. Vivian, 1 Russ. R. 235-237 ; 1 Mont. 
Eq. PI. 34. Calvert on Parties, ch. 3, ^ 26, p. 301 - 308. 



58 EQUITY PLEADINGS. [CH« III. 

ica the two former are either wholly unknown, or, if 
known at all, are of very limited local existence. 
Alienage alone does not in either country constitute a 
general disability to sue in Courts of Law or of 
Equity ; but only alienage combined with the chaAc- 
ter of enemy. An alien friend has a right to sue in 
any Court ; an alien enemy is incapable of suing 
while he remains an enemy, at least unless under 
very special circumstances.^ 

^ 52. The ground of this distinction may be stated 
almost in the very language of a distinguished Judge. 
Alien friends come into the country, either (as was 
formerly the case) with a letter of safe conduct, or 
under a tacit permission, which presumes that authori- 
ty. So, if they continue to reside here after a war 
breaks out between the two countries, they remain 
under the benefit of that protection, and are imjdiedly 
temporary subjects of the country, where they reside. 
But if the right of suing for redress of the injuries, 
which they receive, were not allowed them, the pro- 
tection afforded would be incomplete, and merely, 
nominal. This claim to the protection of the courts 
of the country does not apply to those aliens, who 
adhere to the public enemies of the country. They 
seem, upon every principle, to be incapacitated from 
suing either at Law or in Equity.' 

§ 53. A doubt has arisen, whether this doctrine is 
applicable to Bills of discovery, as it clearly is to Bills 

PI. 111-115; Cooper, Eq. PI. 26; Calvert on Parties, ch. 3, ^ 28, 
p. 313. 

' Mitf. Eq. PI. by Jeremy, 229 ; Cooper, Eq. PI. 27 ; 2 Mont. Eq. PI. 
114, 115; Daubigny v. Davallon, 2 Anst. R. 462, 467; Albretcht ©. 
Sussman, 2 Ves. & B. 323; Edwards on Parties in Equity, 216- 
218; Calvert on Parties, ch. 3, ^ 27, p. 311, 312; Pisani v. Lawson, 6 
Adolph. & Ellis, 90. 

^ Lord Ch. Baron Macdonald in Daabigny v. Davallon, 2 Anst. R. 467. 



60 EQUITY PLEADINGS. [CH. III. 

^ 64. But, although an alien friend is not incapaci- 
tated to sue in Courts of Equity ; yet this doctrine is 

plaintiff for a discovery to enable him to commence a suit at law (proba- 
bly in England). The discovery was denied; and certainly the plaintiff 
could not have maintained the suit at law in an English Court ; and if he 
meant to institute it in the enemy's country, it was open to the like ob- 
jection, that he ought not to be aided there. The other case in the 
Exchequer, cited in 2 Yes. & B. 334, 326, seems, from the remarks of 
the Vice-Chancellor, to have been a Bill for a discovery filed by the party, 
who was the original defendant in a suit at law in England^ to obtain 
evidence to serve as a defence in that suit. Now, if the original plaintiff 
could proceed in the suit at law against the original defendant, notwith- 
standing his being an alien enemy (which it seems difficult on principle to 
maintain), it seems but just and reasonable, that the defendant should be 
treated throughout as entitled to use all the evidence authorized by law 
in his defence. The original plaintiff ought not to be permitted in the 
suit at law to treat the original defendant as competent to be sued, and at 
the same time to treat him as incompetent to sue in equity ; or, in other 
words, as incompetent to make a full defence to the suit at law. The 
suing of an alien enemy in an English court at law, might well be deemed 
on the part of the plaintiff an admission of the competency of the defend- 
ant to be sued, and a waiver of any objection to his alienage. A Bill in 
Equity for a discovery may be filed by an alien enemy in the courts of the 
country, of which he is the enemy, under circumstances, which may 
require, or at least may admit of very difl!erent legal considerations. He 
may file such a Bill in aid of a suit brought, or intended to be brought by 
him as plaintiff at law, in the courts of the country, where he brings 
his Bill ; or, in the courts of the country, of which he (the plaintiff) is 
a subject ; or, in the courts of a neutral country.' In all these cases, it 
would seem clear, that his personal disability to sue, ought to preclude 
him from making use of such a Bill of discovery in aid of such a suit. 
On the other hand, the plaintiff, filing a Bill for a discovery, may be an 
alien enemy, who is sued at law as a defendant in the courts of the coun- 
try, of which he is the enemy ; or, in the courts of a neutral country. 
There may be good grounds for saying, that, in the two latter cases, he 
ought not to be permitted, on account of his personal disability, to main- 
tain a Bill for a discovery in aid of his defence to the suit at law in a 
foreign, hostile, or neutral country, which would not, or at least might not 
apply with equal force to the former case. If a suit can be maintained at 
law against an alien enemy in the courts of a country, where he happens 
to be, or to whose jurisdiction he is already subjected, there is the strong- 
est reason for saying, that he ought to be entitled to use all proper means 
to establish his defence upon the merits against such a suit. An alien 
friend, it is well known, may maintain a Bill for a discovery in aid of a 
suit in a foreign country. 2 Story, Comm. on Eq. Jurisp. ^ 1496. But 
see contra, 9 Sim. 180. 



62 EQUITY PLEADINGS. [CH. III. 

its courts, it might become a just cause of war.^ It i^ 
true, that no sovereign is so entitled to sue, unless he 
has been recognized by the government of the 
country, in which the suit is brought. But this is a 
mere result of the principle of the law of nations, 
which deems such recognition necessary, before he is 
entitled to be treated as a sovereign in a foreign 
country.* In respect to foreign corporations, either 
private, or merely municipal, there seems no just 
ground to deny their competency to sue in Courts of 
Equity ; and it has accordingly been a general prac- 
tice to maintain suits by them, as founded in the 
principles of international justice and amity.* 

§ 66. Partial incapacity to sue exists in the case of 
infants, of married women, of idiots, and lunatics, 
and other persons, who are incapable, or are by law 
specially disabled, to sue in their own names, such, 
for example, as in some of the States of America, are 
common drunkards, who are under guardianship. 

§ 67. And first in relation to infants. — An infant is 
incapable, by himself, of exhibiting a Bill, as well on 
account of his supposed want of discretion, as of his 
inability to bind himself, and to make himself liable to 



1 Hallett V. King of Spain, 2 Bligh, R. 60, N. S. ; King of Spain ». 
Machado, 4 Russ. R. 225, 560 ; Same v. Mendazabel, 5 Simons, R. 596 ; 
Edwards on Parties in Equity, 33 - 35 ; Calvert on Parties, ch. 3, ^ 27, 
p. 310, 311. 

9 City of Berne v. Bank of England, 9 Ves. 347 ; Bolder r. Bank of 
England, 10 Ves. 352 ; Bolder v. Lord Huntingfield, 11 Ves. 283 ; Gel- 
ston V. Hoyt, 3 Wheat. 324 ; Cooper, Eq. PI. 119, 122. By the Con- 
stitution of the United States, foreign sovereigns and states are expressly 
authorized to sue in the Courts of the United States. 

3 Society for Prop. Gospel ». Wheeler, 2 Gallia. R. 105 ; Society for 
Prop. Gospel v. New Haven, 8 Wheat. R. 464 ; Silver Lake Bank v. 
North, 4 Johns. Ch. R. 370 ; Henriquez «. Dutch East India Co., 2 Lord 
Ray. 1532 ; South Carolina Bank v. Case, 8 Barn. & Cresw. 427 ; Bank 
of Scotland v. Ker, 8 Simons, R. 246. 



64 EQUITY PLEADINGS. [CH. III. 

to be matter of great doubt) sue by his guardian in 
ordinary cases. ^ 



I At law, an infant, having a guardian, may sue by his guardian, as 
such, or by his next friend, though he must always defend by his guar- 
dian. 2 Inst. 361 ; 1 Black. Comm. 464. Why he should not be permit- 
ted to sue and be sued in Equity in the same manner, does not seem to 
be easily explicable upon principle. It is commonly said, that in Equity 
he must defend himself, as at law, by his guardian ; but that he cannot 
sue by his guardian, but only by his next friend. It is, however, laid 
down in the Practical Register (Wyatt, Pr. Reg. 212), that " It should 
seem, that an infant may sue in Equity, either by himself, by prochein 
ami, or by guardian, as the Court pleases." And it is added; '* So it 
should seem he may defend, &c. But the course is not to call the 
guardian by that name, but by the name of next friend ; yet if he is call- 
ed by the name of guardian, it is no cause of demurrer." The same doc- 
trine is laid down in the Cursus Cancell. (p. 463), where it is also ex- 
plicitly stated, that an infant may defend by either of these ways. The 
Pract. Reg. cites Tothill, 10, 108, 109, in support of its positions; but 
they are cases of the answer of an infant. And in Wood v, Norton, 
Tothill, 109, a demurrer, because an infant sued by his prochein ami^ 
and not by his guardian, was overruled. See also Co. Litt. 135 (b); 
Hargrave's note (1). When it is said, that he must sue and be sued by 
his guardian, it is not to be understood, as of course, that it is by his gen- 
eral guardian, but by his guardian ad litem, admitted by the Court for 
this purpose. The person, so admitted as guardian ad litem, is usually, 
unless special reasons to the contrary appear, the general guardian, if the 
infant have any. Where an infant sues, or defends at law by his guar- 
dian, the latter must have a warrant ; though if he sues by his next friend, 
the prochein ami need not ; but both the guardian and prochein ami must 
be admitted by the Court in Equity as well as at law. Chandler v. Vi- 
lett, 2 Saund. 117 (/) ; Mr. Sergeant Williams's note (1) ; Fitz. N. B. 
27, 1. (63, 1.) ; 1 Tidd. Pr. ch. 3, p. 70 ; Turner «. Turner, 2 Str. 709. ^ 
Lord Coke has remarked, that in our books the names of guardian and 
prochein ami are sometimes taken the one for the other, because the 
guardian and prochein ami are oflentimes all one, as the guardian in 
aocsige \a also procfiein ami, 2 Inst. 261. The authority of a prochein 
ami to sue for an infant seems derived from certain statutes passed in the 
reign of Edward I. Stat, of Westm. 1, ch. 48, (2 Inst. 261) ; and Stat, 
of Westm. 2, ch. 15, (2 Inst. 390) ; Co. Litt. 135, {b) ; Harg. note (1); 
Turner v. Turner, 2 Str. 709. In practice, in the Courts of Law, an 
infant generally sues by his prochein ami ; but in all cases defends by his 
guardian. 2 Saund R. 117 (/) ; Sergeant Williams's note (1) ; Co. 
Litt. 135, (b) ; Harg. note (1). Perhaps the rule in Equity may not be 
different in substance from that at law : though the practice may be 



66 EQUITY PLEADINGS. [CH. III. 

Other suit.^ This course is indispensable to the secu- 
rity of the rights of the infant, since his consent to a 
Bill filed in his name is not necessary.^ 

^61. In the next place, in relation to married 
women, or, as they are technically called, femes co- 
vert. Xfeme covert^ if her husband is banished, or has 
abjured the realm, or has been transported for felony, 
may, both at Law and in Equity, maintain a suit in 
her own name, as a feme sole.* But, except in these, 
and some other privileged cases of a kindred nature,^ a 
feme covert cannot, at Law, sue except joindy with 

1 Mitf. Eq. PL by Jeremy, 27, 28 ; Cooper, Eq. PL 28, 29 ; Gage v. 
Stafford, 1 Ves. R. 544, 545. 

« Mitf. Eq. PL by Jeremy, 28 ; Cooper, Eq. PL 27, 28 ; Turner v. 
Turner, 2 Eq. Abridg. 238 ; S. C. 2 Str. 708 ; Andrews «. Cradock, 
Prec. Ch. 376. 

3 Mitf. Eq. PL by Jeremy, 28 ; Co. Litt. 132, (b) ; Id. 133; Coojwr, 
Eq. PL 24, 30 ; Countess of Portland v. Prodgers, 2 Vem. 104 ; New- 
some V. Bowyer, 3 P. Will. 37, 38 ; 1 Fonbl. Eq. B. 1, ch. 2, ^ 6, 
note (p). 

^ That there are some other excepted or privileged cases, has been 
solemnly decided. Thus, it has been held, that if the husband is an 
alien enemy, his wife, domiciled in the realm, may sue as ^ftmesoU, 
Deerly v. Countess of Mazarine, 1 Salk. 116 ; S. C. 1 Ld. Raym. 147. 
So, where the husband is an alien domiciled abroad, and has never been 
within the realm, or where he has voluntarily abandoned her here, and is 
under a disability to return. De Graillon v. L'Aigle, 1 Bos. & PolL 357 ; 
Kay V. Duchess De Pienne, 3 Campb. 123. So, where the husband has 
deserted the wife in a foreign country, and she comes here and maintains 
herself as 9k feme sole, Gregory v. Paul, 15 Mass. R. 31. So, where 
the husband in a foreign state compels his wife to leave him, and she 
comes here, and maintains herself as dkfeme sole. Abbot v. Bayley, 6 
Pick. R. 89. These last two cases, it will be seen, were decided in 
America ; but they seem well supported by the principles established in 
the English cases. The eases of Walford v. De Pienne, 2 Esp. R. 554 ; 
Franks v. De Pienne, 2 Esp. R. 587, and De Gaillon v. L'Aigle, 1 Bos. 
& Pull. 357, went much farther. But it is questionable, whether these 
latter cases would now be supported in England, as they were greatly 
modified, if not overturned, by the cases of Kay ». De Pienne, 3 Campb. 
R. 123 ; Marshall v, Rutton, 8 T. R. 545 ; Bogett v. Frier, 11 East, 301 ; 
Farrar v, Granard, 4 Bos. & Pull. 80 ; Clancy on Marr. Women, 57-62 ; 
Calvert on Parties, ch. 3, ^ 21, p. 265-274. 



68 EQUITY PLEADINGS. [CH. III. 

exhibit a Bill as her next friend, without her consent ; 
whereas, an infant's consent to a Bill filed in his name 
is not necessary.* Where a suit is brought by the 
husband in his own name and in that of his wife, it is 
considered as his suit only, and accordingly it will not 
be absolutely binding on her.^ 

^ 62. In like manner, the husband may sue the 
wife in Equity, for the purpose of enforcing his own 
marital rights against her property, whether such rights 
result from her ante-nuptial agreement, or from the 
general principles of Law or Equity;' or whenever 
he seeks relief upon some claim adverse to or in op- 
position to his wife ; ^ for (it has been well said) it is 
constant experience, that the husband may sue the 
wife, or the wife the husband in Equity, notwith- 
standing, at Law, neither of them can sue the other.* 

§ 63. In cases, where the wife has a separate prop- 
erty, it is often stated, that in respect to this property, 
she may sue and be sued in Equity, as a fe^m nolt^ 
Perhaps this is laying down the rule too broadly ; for it 
is the ordinary course, at least for conformity's sake, to 
join the husband in such cases as a party. In prac- 
tice, where the suit is brought by the wife for her 
separate property, the husband is sometimes made a 
co-plaintiff. But this practice is incorrect ; and in all 

1 Mitf. Eq. PI. by Jeremy, 28 ; Cooper, Eq. PI. 30 ; Andrews v. 
Cradock, Prec. Ch. 376 ; S. C. 1 Eq. Abridg. 239 ; Pennington ». Al- 
Tin, 1 Sim. & Stu. 264. 

s Grant v. Van Schoonhoven, 9 Paige, R. 255. Post, ^ 361. 

8 2 Story on Eq. Jurisp. ^ 1368 ; Cannal ». Buckle, 2 P. Will. 243, 
244; Calvert on Parties, ch. 3, ^ 21, p. 265-274. 

^ Hanrott v. Cadwallader, 2 Russ. & Mylne, 545. 

^ Cannal v. Buckle, 2 P. Will. 243, 244 ; Ex forte Strangeways, 3 
Atk. 478: 1 Fonbl. Eq. B. 1, ch. 2, ^6, note (n) ; Brooks «. Brooks, 
Prec. Ch. 24 ; Mitf. Eq. PI. by Jeremy, 28. 

« 2 Story on Eq. Jurisp. ^ 1368 ; Newsome v. Bowyer, 3 P. Will. 38, 
Mr. Cox's note A. • 



70 EQUITY PLEADINGS. [CH. III. 

adverse interest, he is a necessary and proper party 
defendant. Where he has no such interest, it is still 



be the jast amount of her right, because the account taken under the pro- 
ceedings may not have been properly taken ; and if the principle be, as 
I think it is in those cases, that the wife is, as to her separate estate, en- 
titled to prosecute the suit by her own authority, independently of her 
husband, there seems to. be no reason why a suit, instituted by her hiw- 
band, should bind her, — why she may not, at any time, institute a 
new suit for the same matter by her next friend, or why a decree (not 
being a decree for a specific sum secured by the Court for her separate 
use, and there being no evidence that it was prosecuted with her con- 
sent and authority) should be a bar to a new suit instituted by her next 
friend. It is true, as was stated by Sir John Leach, in Smyth v. Myers, 
(3 Madd. 474,) that the husband, by joining the wife as a co-plaintijOf, 
admits, that the property, sought to be recovered, or secured, is the 
separate property of the wife ; but the wife appears to be further entitled 
to have the amount of the sum, to be recovered, or secured, ascer- 
tained by a proceeding of her own, independently of her husband, and 
the party sought to be charged is entitled to be protected against a 
subsequent independent claim of the wife. And in the subsequent cause of 
Hughes V. Evans, (1 Sim. & Stu. 1B5,) Sir J. Lea&h, upon the authorities 
of Griffith V. Hood and Pawlet v. Delavel, there cited to him, stated, that 
where the husband and wife join in the suit as plaintiffs, or answer as 
co-defendants, it is to be considered as the suit or defence of the 
husband alone, and that it will not prejudice a future claim by the 
wife in respect of her separate estate : and on that opinion he acted in 
Reeve v. Dalby, (2 Sim. & Stu. 464.) It was argued^ that these 
authorities do not apply to cases, in which there is no dispute between 
husband and wife ; but in considering them, I think, that they do not 
admit of that limitation, and it is necessary to regard the interests of 
all parties. Not only ought the wife to be protected in the enjoyment of 
her separate property, but the parties also, who are sued, ought to be 
protected against concurrent or consecutive demands of the husband suing 
in the names of himself and his wife, and of the wife suing by her next 
friend. If such suits were allowed, it is obvious, that great oppression 
might be practised by the husband and wife acting in concert together. 
It is, I presume, for reasons of this nature, that the Vice-Chancellor has, 
in several instances, the notes of some of which I have seen, made orders 
to amend Bills filed by the husband and wife for the separate estate of the 
wife, by making the husband a defendant, and inserting the name of a 
next friend for the wife as plaintiff; and in the case of Sigel v. Phelps, 
(7 Sim. 239,) he intimated his intention to dismiss the Bill, if the defend- 
ants would not consent to a decree. And it is for the same reason, that 
I have, though I admit with reluctance, come to the conclusion, that I 
ought to allow this demurrer. I say with reluotance, beoanse I think, 



72 EQUITY PLEADmOS. [CH. III. 

^ 64. In the next place in relation to Idiots and 
Lunatics. The care and commitment of the custody 
of the persons and estates of idiots and lunatics are 
in England the special prerogative of the Crown, and 
are always entrusted by the Crown under the royal 
sign-manual to the person holding the great seal.^ 
By virtue of this authority, whenever any person is by 
an inquisition found to be an idiot or lunatic, the 
person, holding the great seal, commits the custody of 
the person and estate of such idiot or lunatic to some 
suitable person or persons, who is or are since called 
the committee or committees of the idiot or lunatic. 
In all such cases the idiot or lunatic must sue by the 
committee or committees of their estates, all of them 
being made parties plaintiffs.^ Sometimes, indeed, 



allowed to sue or be sued by a stranger merely in respect to ber separate 
property without her husband being plaintiff or defendant," Mr. Cox, 
in his note (A) to Newsome v, Bowyer, (3 P. Will. 38), says generally, 
that " A feme covert having a separate estate may in a Court of Ekjuity be 
sued as a feme sole, and proceeded against without her husband ; for, in 
respect to her separate property she is looked upon as Sifeme soU.^^ He 
cites Dubois v. Hole, 2 Vern. R. 614, and Bell v. Hyde, Prec. Ch. 328; 
in each of which cases the husband was made a party to the Bill ; but it 
being shown, that he was beyond sea, the Court held, that the service on 
the husband might be dispensed ^I'ith, and that the process was regular 
against the wife alone. In Travers v. Bulkely, 1 Ves. 386, Lord Hard- 
wicke recognized the case in 2 Vern. R. 614 ; but put the decision upon 
another ground, that the wife had voluntarily appeared and obtained time 
to answer. He left the point open, whether the wife could be sued with- 
out her husband. Mr. Raithby, in his note to 2 Vern. 614, has referred 
to some MS. cases, proceeding on the general ground. In Regnes f^ 
Lewis, 1 Ch. Cas. 35, where a feme covert sued without ber husband, a 
demurrer for that cause was overruled. But the circumstances of the case 
do not appear ; and the husband may have been a party defendant, as his 
interest was concerned. See also Tothill, R. 93-96. See also Plomer 
«. Plomer, 1 Ch. Rep. 68 ; Ante, § 63, note. 

1 Mitf. Eq. PI. by Jeremy, 29; 2 Story on Equity Jurisp. ^ 1362- 
1365 ; Calvert on Parties, ch. 3« ^ 26, p. 304. 

« Mitf. Eq. PL by Jeremy, 29 ; 1 Newl. Ch. Pr. ch. 2, ^ 1, p. 54 ; 
Com. Dig. Chancery, E. 2 ; Cooper, Eq. PI. 31, 32 ; Fuller «. Lance, 1 



74 EQUITY PLEADINGS. [CH. I|I. 

committee.^ But in such informations it is not proper 
to name the lunatic as a relator, but as a party ; and 
it is the common practice to require some third person 
to be named as relator, that he may be answerable 
for the costs.^ 

^ 65. In some of the States in America, the Courts 
of Equity are intrusted with the like authority to 
appoint committees for idiots and lunatics; and in 
such cases the idiots and lunatics sue by their commit- 
tees. In other States, idiots and lunatics are by law 
placed under guardians appointed by other Courts, 
and ordinarily by the Courts of Probate of the State. 
In such cases the idiots and lunatics sue and defend 
suits by their proper guardians, unless some other is 
specially appointed for that purpose.^ 



1 Mitf. Eq. PI. by Jeremy, 29 ; Attorney-General v. Woolrich, 1 Cb. 
Cas. 153; Attorney-General v, Parkhurst, 1 Ch. Cas. 113; Attorney- 
General V, Panther, 2 Dick. 748. 

» Attorney-General v. Tiler, 1 Dick. 378 ; S. C. 2 Eden, R. 230. In 
some of the cases a distinction seems to be taken between an information 
in behalf of an idiot, and one in behalf of a lunatic. It is said in the case 
of the former, the idiot need not be a party. In the case of the latter, the 
lunatic must. See Attorney-General ». Woolrich, 1 Ch. Cas. 153 ; At- 
torney-General V. Tiler, 1 Dick. 378; S. C. 2 Eden, 230. Perhaps 
this may arise from the difierence, that in the case of an idiot the King 
has a beneficial interest in his estate ; and in the case of a lunatic he has 
only a trust while he is insane. See 2 Story Comm. on Eq. Jurisp. 
§ 1336, and notes. Where an information is filed in behalf of a lunatic, 
who has no committee, the Court will give directions to have a commit- 
tee appointed, and in the mean time proceed to make orders for the care 
of the property. Mitf. Eq. PI. by Jeremy, 29, 30, and note. Where in 
a suit the committee of an idiot or a lunatic has an adverse interest, the 
suit may be instituted by another person, specially authorized by the 
Court. Mitf. Eq. PI. by Jeremy, 29, 30, 104 ; Cooper, Eq. PI. 32. 

3 Thus, for example, in New York, by statute, the Court of Chancery 
has the care and custody of idiots and lunatics, and entire jurisdiction oyer 
the subject in all its general relations. Revised Code of New York, 
1829, Vol. 2, Pt. 2, ch. 5, tit. 2, p. 51, &c. In matter of Wendell, 1 
John. Ch. R. 600 ; Brasher v. Van Cortlandt, 2 John. Ch. R. 242, 246. 
On the other band, in Massachusetts, the Courts of Probate have the 



76 EQUITY PLEADINGS. [CH. III. 

they may sue, are not liable to be sued ; and in 
America a similar exemption generally belongs to the 
Government or State. But in England, when the 
interest of the Crown, or of those, who are under its 
particular protection, is concerned in the defence of a 
suit in Equity, the Attorney-General, or, in the vacan- 
cy of that office, the Solicitor- General, is a necessary 
party, to make a defendant, to support that interest.^ 
But this doctrine is to be understood with some limi- 
tations. Where the rights of the Crown are concerned, 
if they extend only to the superintendence of some 
public trust, as in the case of a charity, the Attorney- 
General may be made a party to sustain those rights.^ 
And in other cases, where the Crown is not in pos- 
session, and a title vested in it is not impeached, and 
its rights are only incidentally concerned, it has been 
generally considered, that the Attorney-General may 
be made a party in respect of those rights ; and the 
practice has been accordingly.^ But where the Crown 
is in possession, or any title is vested in it, which the 
Bill seeks to divest or affect, or its rights are the 
immediate and sole object of the suit, the proper mode 
of redress is not by a Bill, but by a petition of right.* 
Upon such petition the Crown ordinarily directs, that 
right be done to the party ; and the petition is then 
referred to the Chancellor to be executed according 
to law, and directions are given, that the Attorney- 

- - ..— --■ — -— - ----- ■-■■■■-■ ■- 

1 Mitf. Eq. PL by Jeremy. 30, 162 ; Calvert on Parties, ch. 3, § 26, p. 
301 - 308. 

2 Mitf. Eq. PI. by Jeremy, 30. 

3 Mitf. Eq. PI. by Jeremy, 30 ; Cooper, Eq. PI. 22 ; Balch ». Wastell, 
1 P. Will. 445 ; Bolder V. Bank of England, 10 Ves. 352. 

< Cooper, Eq. PI. 22, 23 ; Mitf. Eq. PI. by Jeremy, 31 ; Reeve v. 
Attorney-General, 2 Atk. 223; Uovenden v. Lord Annesley, 2 Sch. 
& Lefr. 617, 618. 



78 EQUITY PLEADINGS. [CH. HI. 

course, in ordinary circumstances.^ But if an idiot or 
lunatic has no committee, or the committee has an 

i Mitf. Eq. PI. 103, 104 ; Westcombe v. Weatcombe, 1 Dick. R. 233 ; 
Cooper, Eq. PI. 31, 32 ; Shelf, on Idiots and Lunatics, ch. 10, § 2, p. 425, 
&c. In Brasher's Ex'ors. v. Van Cortlandt (2 John. Ch. R. 242, 245), 
Mr. Chancellor Kent held it not necessary, in New York, to make the 
lunatic himself a party defendant to a Bill for payment of his debts, bat 
his committee only, where he had a committee. His language on that 
occasion was : '' The Bill is against the committee, and seeks payment 
of a debt due from the lunatic ; and the question arises, whether the lu- 
natic ought to have been joined with his committee as a party defendant. 
If he had been joined, it would seem to be a mere matter of form, and 
the committee would have been directed, as of coarse, to put in his an- 
swer, as his guardians. It would have been their answer, though in his 
name. If he be made a defendant, he is to answer by his committee. 
(Dickens, R. 233, 460.) When the committee are made defendants, 
there can be no use in joining the lunatic also, for the custody of the 
estate is no longer in him, but in this Court, under the administratioQ of 
the committee. Though the books speak of the lunatic as a proper party 
(Lloyd's case, Dickens, 460), yet I do not perceive its necessity. The 
payment of the debts due from the lunatic is now usually sought by a 
petition to the Court, as the funds are supposed to be under its entire 
control.'* He added, '* The custody of the lunatic is conmiitted, in 
England, not to the Court of Chancery but to an individual selected by 
the Crown, who is generally, though not always, the person, who has the 
custody of the great seal. (3 Atk. 635 ; Dickens, 563.) But, here, the 
charge of the person and estate of the lunatic, and his maintenance, is 
expressly committed to the Chancellor (N. R. Laws, vol. i. 147), and the 
duty of providing for the payment of the debts is specially enjoined. 
For this purpose, the committee is to exhibit, under oath, within six 
months from his appointment, an inventory of the estate, debts, and cred- 
its of the lunatic ; and whon the personal estate shall be insufficient for 
the discharge of the debts, he Lb to present a petition to the Chancellor, 
setting forth the particulars and amount of the estate and debts. If the 
personal estate shall appear to be insufficient, it is made the duty of the 
Chancellor to cause so much of the real estate to be sold as shall be 
necessary for the discharge of the debts. These provisions render the 
payment of the debts out of the lunatic's estate no longer a matter of 
discretion, but of indispensable duty ; and they contemplate the commit- 
tee as being charged (though, undoubtedly, under the control and 
direction of this Court) with a trust to be performed for the benefit of 
creditors, and an agency in the payment of the debts, and the adminis- 
tration of the estate. To what extent these new duties of the committee 
may necessarily lead, I need not now examine, nor am I altogether 
prepared to say. The view of the subject under our statute is, certainly, 



80 EQUITT PLEADINGS. [CH. III. 

and sues her as defendant; for in such a case he 
elects to treat her as a feme sole for the purposes of 
the suit.^ So, where her husband is an exile, or has 
abjured the realm, or has been transported under a 
criminal sentence, or is an alien enemy, she may be 
sued, and answer, as a feme sole.^ But, generally, a 
married woman cannot answer separately, when her 
husband is joined, or ought to be joined, as a defend- 
ant, in the suit, without an order of Court for that 
purpose, founded upon special circumstances.* Thus, 
where a married woman claims as a, defendant, in 
opposition to her husband, or lives separate from him, 
or disapproves of the defence, which he wishes her to 
make, she may obtain an order of the Court for liberty 
to answer and defend the suit separately ; and in such 
a case her answer may be read against her.* So, if a 
married woman obstinately refuses to join in a defence 
with her hiisband, the latter may obtain an order to 
compel her to make a separate defence/ So, if the 
husband be abroad, and not answerable to the juris- 



1 Mitf. Eq. PI. by Jeremy, 104, 105 ; Cooper, Eq. PI. 30, 31 ; Brooks 
r. Brooks, Prec. Ch. 24 ; JEr parte Strangeways, 3 Atk. 478 ; Ainslee 
V. Medlicott, 13 Yes. 266. In such a case, the wife does not put in her 
answer by a guardian ; but in her own name, as a feme sole. Ex parte 
Strangeways, 3 Atk. 478. 

2 Mitf. Eq. PI. by Jeremy, 104, 105 ; Cooper, Eq. PI. 30, 31 ; Portland 
«. Prodgers, 2 Vern. 105; Co. Litt. 132 (b), 133 (a), 

3 Garey v. Whittingham, 1 Sim. & Stu. 163 ; Duke of Chandos r. 
Talbot, 2 P. Will. 371 ; Anon. 2 Cas. Ch. 39 ; Ward r. Meath, 2 Cas. 
Ch. 173; Com. Dig. Chancery, K. 2. 

4 Mitf. Eq. PI. by Jeremy, 104, 105 ; Cooper, Eq. PI. 30, 31 ; Ex parte 
Halsam, 2 Atk. 50 ; Anon. 2 Eq. Abridg. 66 ; Wybourn v. Blount, I 
Dick. R. 155; Duke of Chandos v. Talbot, 2 P. Will. 371; Traverse. 
Bulkely, 1 Ves. 383 ; S. C. 1 Dick. R. 138 ; Jackson r. Haworth, I Sim. 
& Stu. 161 ; Com. Dig. Chancery, K. 2. 

s Mitf. Eq. PI. by Jeremy, 105 ; Cooper, Eq. PI. 30, 31 ; Pain r. , 

1 Ch. Cas. 296; Garey v. Whittingham, 1 Sim. & Stu. 163; Barry r. 
Cane, 3 Madd. R. 472 ; Murriet v. Lyon, Bunb. R. 175. 



82 EQUITY PLEADINGS. [CH. IT. 



CHAPTER IV. 

PROPER PARTIES TO BILLS. 

^ 72. Let us, in the next place, proceed to the 
consideration of the inquiry, who are the proper and 
necessary parties to a Bill. This is a subject of great 
practical importance, and of no inconsiderable difficulty 
in a great variety of cases. ^ It has been remarked, 
that Courts of Equity adopt two leading principles 
for determining the proper parties to a suit. One of 
them is a principle, admitted in all Courts upon ques- 
tions affecting the suitor's person and liberty, as well 
as his property, namely, that the rights of no man 
shall be finally decided in a Court of justice, unless 
he himself is present, or at least unless he has had a 
full opportunity to appear and vindicate his rights. 
The other is, that when a decision is made upon any 
particular subject-matter, the rights of all persons, 

1 Cooper, Eq. PI. 33, 34. As far as I know, there are bat two works 
which treat fully of the subject of parties. The first and earliest (pub- 
lished in New York, in 1832,) is, " A practical Treatise on Parties to 
Bills and other Pleadings in Chancery, with Precedents, by Charles Ed- 
wards, Esq.'* The second Lb, '* A Treatise upon the Iaw respecting 
Parties in Suits in Equity, by Frederic Calvert, E^.," published in Lon- 
don, in 1837. Each of these works has high merits and will be found 
exceedingly useful in practice. But the work of Mr. Calvert contains the 
fullest and most systematic review of the principles, which regulate the 
subject, as well as the most complete collection of the authorities. I 
recommend them both to the learned reader, who Ib desirous of making 
a thorough examination of the whole subject; and in this edition I 
have freely used such of the materials furnished by each, as had escaped 
my former researches. Mr. Daniell, also, in his recent and exoeDent 
work on the Practice of Chancery, has devoted a good deal of attention 
and a large space to the subject. See 1 Daniell, Ch. Pract. ch. 5, p. 
284 - 392. 



84 EQUITY PLEADINGS. [CH. IV. 

make a complete decree between the parties, to pre- 
vent future litigation by taking away the necessity of 
a multiplicity of suits, and to make it perfectly cer- 
tain, that no injustice is done, either to the parties 
before it, or to others, who are interested in the subject- 
matter, by a decree, which might otherwise be ground- 
ed upon a partial view only of the real merits. When 
all the parties are before the Court, the whole case 
may be seen ; but it may not, where all the conflicting 
interests are not brought out upon the pleadings by 
the original parties thereto.^ We shall hereafter have 
occasion to consider at large, who in the true sense 
of the rule are proper parties to the suit ; for it has 
been well observed, that it is not all persons, who 
have an interest in the subject-matter of the suit, but, 
in general those only, who have an interest in the oi- 
ject of the suit, who are ordinarily required to be made 
parties.' 

^ 73. Lord Chief Baron Gilbert,' after stating the 
rule, has illustrated its propriety and policy in the 
following manner : " Where a man seeks for an ac- 
count of the profits or sale of a real estate, and it ap- 
pears upon the pleadings, that the defendant is only 
a tenant for life, and consequently, the tenant in tail 
cannot be bound by the decree ; and, where one lega- 
tee brings a Bill against an executor, and there are 
many other legatees (none of which will be bound, 
either by the decree, or by the account to be taken 
of the testator's assets,) and each of these legatees 
may draw the account in question over again at their 
leisure ; or, where several persons are entitled, as next 
of. kin, under the statute of distributions, and only 

1 West V, Randall, 2 Mason, R. 190, 191. 

3 See Calvert on Parties, 6, 6, 10, 11 ; Post, ^ 136-152. 

3 Gilb. For. Rom. 167, 158. 



86 EQUITY PLEADUCG3. * [CH. IV. 

the case of a mortgage in fee to secure a debt by 
bond. There, if the mortgagee dies, the heir is tbs 
aoie party ' entitled at law to sue the Hiortgagor for 
possession of the land ; and the executor or adminis- 
trator, the sole party entitled at law to sue for the 
debt upon the attendant bond. And the heir and 
executor or administrator cannot at law unite in one 
suit their respective claims, although arising out of the 
same transaction. But in a Court of Equity, both 
may be united, if the ot^ect is to compel a payment 
of the debt or a foreclosure of the mortgage. Nay, 
although the executor or administrator is deemed in 
Equity the sole party entitled to the debt, and there* 
fore entided also to sue upon the mortgage for a fore- 
closure; yet he may not sue alone; but he will be 
compelled to join the heir,^ either as a co-plaintifi^ or as 
a co-defendant, because the mortgagor is entitled upoa 
payment of the debt to have a reconveyance of the 
estate, and this can be made only by the heir, in whom 
the estate is then vested. In shorty the h^ is treated 
as a trustee of the executor or administrator^ untU the 
debt is paid, and when it is paid, he is treated as a 
trustee of the mortgagor; and therefore, to avoid cir- 
cuity of action and multiplicity of suits. Equity re- 
quires both to be joined in the same suit, ia order 
that complete justice may be done tmaflatu.^ But we 
are not to understand from thb, that the nonjoinder 
or misjoinder of proper parties can be made aa objec- 
tion in all stages of the cause with equad effect. The 
mere nonjoinder of a party, who might be a proper 
party, but whose absence produces no prejudice to the 
rights of the parties before the Court, will constitute 



1 See Scott v, Nicoll, 3 Row. R. 476 ; CalTert on Parties, 2, S; Id. 
166 ; Id. 187 ; Post, § 300, 201. 



88 EQUITY PLEADINGS. [CH. IV. 

ties to it.* All other persons, who have merely an 
equitable, or remote interest, are not only not required 
to be parties, but are excluded from being made par- 
ties ; and, if any are improperly joined, the fault may 
be fatal to the suit.* Thus, for example, at Law, the 
executor and the heir cannot join, or be joined, in an 
action, although each may have an interest in the con- 
troversy. But in Equity, they may both join, and be 
joined, and, indeed, both are often necessary and 
proper parties.* 

^ 76, a. The general rule, in Courts of Equity, as 
to parties, is, (as has been already stated,*) that all 
persons materially interested in the subject-matter, 
ought to be made parties to the suit, either as [dain- 
tiffs, or as defendants, however numerous they may be, 
in order, not only that complete justice may be done, 
and that multiplicity of suits may be prevented ; ' or, 
as the rule was once stated by Lord Hardvncke, that 
all persons ought to be made parties before the Court, 
who are necessary to make the determination com- 
plete, and to quiet the question.^ It has been 
objected, that this, although the common language 
made use of in the authorities, is not entirely accurate, 
or free from vagueness ; "^ for there are cases, in which 



1 Com. Dig. Abatement, E. 8 to E. 14; Id. F. 4 to F. 10; Rice v, 
Shate, 5 Burr. 2611 ; Chitty on Plead. 1 - 10, 3d edit. 
3 Com. Dig. Abatement, E. 15 ; Chitty on Plead. 7, 8, 13, 14, 3d edit. 

3 Plunket V. Parson, 2 Atk. 51 ; Knight v. Knight, 3 P. Will. 333, and 
Mr. Cox's note (A) ; Calvert on Parties, 1,2; Ante, ^ 74, 74, a. 

4 Ante, ^ 72. 

^ Mitf. Eq. PI. by Jeremy, 4th edit. p. 164 ; Calvert on Parties, ch. 1, 
^ 1, p. 3 ; Palk v. Clinton, 12 Yes. 58 ; Cockbum v, Thompson, 16 Yes. 
325 ; Hawkins v. Hawkins, 1 Hare, R. 543, 546 ; Weatherby v. St. 
Georgio, 2 Hare, R. 624, 626 ; Harrison «. Stewardson, 2 Hare, R. 530 ; 
Post, ^ 149, 150, 206-208, 215-217. 

6 Poor ». Clarke, 2 Atk. R. 515. 

7 Calvert on Parties, ch. 1, § 1, p. 3- II. 



90 SQUITT PLEADINGS. [CH. IV. 

against the executor, to establish his debt or claim 
against the estate ; for the establishment of such debt 
or claim goes pro tanto in direct diminution of their 
interest in the residue. Yet they are never required 
to be made parties.^ So trustees for the payment of 
debts and legacies may sustain a suit, either as plain- 
tiffs or as defendants, touching the trust estate, 
without bringing the creditors or legatees before the 
Court as parties.^ On the other hand, persons, who 
seem to have no interest, either in the sulyect, or in the 
object of a suit, are sometimes required, as has been 
abready suggested, to be made parties, or at least may 
be made parties. Thus, if the heir is sued upon a 
bond of his ancestor by the obligee, it is said, that the 
executor or administrator of the ancestor ought to be 
made a party, because the personal assets are primari- 
ly liable for the debt, although the object of the Bill 
is purely to obtain payment from the heir.' Yet this 
principle is not applied throughout ; for, as we shall 
presendy see, a mortgagee may proceed against the 
heir of a mortgagor for a foreclosure, without making 
the executor or administrator a party, although the 
personal assets are, in such a case, primarily liable for 
the debt.* 

i . — 

1 Calvert od Parties, ch. 1, ^ 1, p. 5 ; Port, ^ 148, 150. 
9 Post, ^ 150. 

3 Post, § 173 ; Calvert on Parties, ch. 1, § 1, p. 2, 3. In March •. 
Cockerill, 8 Simons, R. 219, the suit was brought by A for one moietj of 
a trust fund, the other belonging to B, and the allegation of the Bill was, 
that the whole fund was improperly dealt with. The Vice-Chancellor 
held, that as it did not appear, that B had been satisfied as to his share, 
he ought to be made a party to the suit, that the whole matter might be 
settled in one suit. Here, we see, that though the object of the Bill as 
to one moiety might be obtained, the Court acted upon the ground, that 
other considerations might require other parties. Ante, ^ 159 ; Port, 
§ 213, 214. 

4 Post, § 175, 193 and notes ; Post, § 186, 196. 



92 EQUITY PLEADINGS. [CH. IT. 

it is of great importance to ascertain, what are the 
admitted exceptions to the general rule, and to ascer- 



says ; * The general rule is, that if you draw the jurisdiction out of a court 
of ]aw, you noust have all persons parties before this Court, who will be 
necessary to make the determination complete, and to quiet the question.' 
Lord Thurlow says (Anon. 1 Yes. jr. 29, 1789) ; * All parties having an 
apparent right, must be brought into Court before the Court will do any 
thing which may affect their right.' Sir William Grant says; * At far 
as it is possible, the Court endeavours to make a complete decree, that 
shall embrace the whole subject, and determine upon the rights of all pu^ 
ties interested in the estate.' (Palk v. Clinton, 12 Yes. 58, 1806.) Lord 
Eldon says (Cockburn v. Thompson, 16 Yes. 325, 1809) ; < The strict 
rule is, that all persons materially interested in the subject of the suit, 
however numerous, ought to be parties ; that there may be ft'oomplete 
decree between all parties having material interests.' Sir William Grant 
again says (Wilkins o. Fry, 1 Mer. 262, 1816) ; * In Equity it is sufficient 
that all parties interested in the subject of the suit should be before the 
Court, either in the shape of plaintifis or of defendants.' 

** The object of quoting so many authorities for the general rule, is not 
merely to show, how universally it has been acknowledged, but still more 
to call attention to the vague language in which it has been expressed by 
very logical reasoners. Lord Redesdale has qualified the rule, which be 
laid down, in these words (Red. PI. 170) : * In many cases the expression 
that all persons interested in the subject must be parties to a suit, is not 
to be understood as extending to all persons who may be amsequenHeU^ 
interested.' Yet if Lord Redesdale 's rule, even in company with this 
qualification, were to be adopted as a guide for practice, it would fre- 
quently lead to inferences, which are at variance with decisions acknowl- 
edged to be correct. For instance, a remainder-man in fee after an es- 
tate tail, is (Cockburn v. Thompson, sup.) not to be made a party to a 
suit in which the title to the estate is determined, though one who claims 
an interest only for life, antecedent to the estate tail, must be made a 
party. A person who possesses either of these two characters is ' a per- 
son interested,' and * materially interested' ; nor is there any meaning in 
the term ' consequentially,' which applies to the former, and not to the 
latter. If a creditor (Lawson «. Barker, 1 Bro. C. C. 302, 1783) sues for 
payment of his debt, it is clear that the residuary legatees are interested 
in resisting the claim ; for if the resistance to the debt is successful, their 
shares of the residue will be increased. Yet it is not necessary to join 
them as parties with the executors. A residuary legatee, or, in case no 
residuary legatee is appointed, a next of kin, appears to have precisely 
the same degree of interest in opposing a suit to establish a legacy, as an 
heir at law has in opposing a suit to establish a devise ; the interest of the 
one is in no respect more ' consequential' than the interest of the other ; 
yet the heir at law is a necessary party in one suit ; and the next of kin. 



94 EQtJITT PLEADING9. [cit. tY. 

are fully seen and explained, they will furnish strong 
lights to guide us in our endeavours to apply the mle 

of the term, in the subject of the suit, cannot be at all varied by the ioaer^ 
tion of such a prayer. The executor of a mortgagor has neither greater 
nor less interest in the estate mortgaged, whether the prayer of the mort- 
gagee's Bill is for a sale or for a foreclosure ; yet if it is only for a fore- 
closure, he is not necessarily a party ; but he is, if the prayer is for a 
sale. When a lessee of tithes institutes a suit respecting them, the 
lessor is not a requisite party, unless the prayer is ih part for the eeCab- 
lishment of the right to tithes ; although he is of course equally iotereeted 
in the tithes themselves, whether such a prayer is or is not introdueed 
into the Bill. Many cases may be mentioned, which show, that aoootdiiig 
to general practice, a mere interest in the subject of suit, as the term was 
used by Lord Eldon and Sir W. Grant in the passages quoted above, is 
not sufficient to render a person a necessary party. The cases of SaviUe 
e. Tancred, and Franco v. Franco, are inserted here as examples of sadi 
cases. Saville (Saville o. Tancred, I Yes. 101, 1748), pawnee of a 
strong box, containing jewels which belonged to the Duke of Devonshire, 
filed a Bill against Tancred, in whose custody it was, to eompel him to 
deliver it up, and to give an accoutit. An objection was made, that the 
Duke's representative should have been made a party ; but Lord Haid- 
wicke ' overruled the objection ; for pawnee of a pledge, as Saville was, 
may bring trover or detinue at law for it, without troubling himself with 
the pawner ; for he has a special property. But suppose he was not 
pawnee, but had only the possession of them, and delivered them to an- 
other; that person has nothing to do with the Duke. Therefore, let 
these jewels come into his hands which way they will, he may give the 
custody of them to any one, and have them back without hurting the 
Duke or his representative.' In Franco •. Franco (3 Ves. jr. 75, 1796), 
the plaintiff, a trustee, had, at the request of his co-trustee, the defend- 
ant, transferred the trust fond into his name. The Bill prayed, amongst 
other things, that the defendant might be decreed to replace the fond, 
and it was contended, on demurrer, that the cestuis que trust ought to have 
been parties; but Lord Loughborough said, ^This is no Bill for exeea- 
tion of a trust. Whatever demand the cestuis que trust would have, they 
could never found themselves upon the case the present plaintiff makes 
against the defendant,' and overruled the demurrer. It need hardly be 
remarked, that in Saville v, Tancred, the Duke of Devonshire was inter- 
ested in the jewels, and that in Franco v. Franco, the cestuis que trust 
were interested in the stock. In cases concerning trust property, it is 
particularly necessary to pay attention to the correct rule ; for the cofutt 
que trust are always the persons interested in the subject of the suit, and 
yet they are very frequently not to be introduced among the parties. 
Where, for instance, there are trustees to sell an estate, receive the pur- 
chase money, and pay it to particular individoals. If the mere objeet of 



96 EQUITY PLEADINGS. [CH. IV. 

of a learned chancellor, speaking upon this very sub- 
ject of parties, as containing a salutary admonition 



in the result of the cause. Vol. I, p. 102), namely, that * all concerned io 
the demand ought to be made partners in Equity.' Not all concerned in 
the subject-matter respecting vrhich a thing Lb demanded ; but aU con- 
cerned in the very thing which is demanded, the matter petitioned for in 
the prayer of the Bill, in other words, the object of suit. The same m- 
mark applies to all the authorities, which have been just quoted. They 
make the propriety of a person being made a party depend upon his inter- 
est, not in the subject-matter, but in the object of the suit. If this dis- 
tinction between the meaning of * the subject of a suit,' and that of ' the 
object of a suit,' is borne in mind, it may appear superfluous to show by 
other authorities, that the word ' interest,' when used as a criterion of the 
proper parties to a suit, means interest in its object, and not interest ia 
its subject-matter. Still, as the word seems to have been loosely em- 
ployed in the opinions, which w^ere quoted in the first instance, and as 
the correct interpretation of it may be the key to many of the difllculties, 
which arise respecting parties, no apology will be required for mentioning 
the interpretation of the word, which has appeared in a work recently 
published by Mr. Wigram. In the following passages, he is ascertaining, 
what are the documents, which a plaintiff may compel a defendant to 
produce. ' The plaintiff (Points on the Law of DiscoTery, by James 
Wigram, K. C, p. 199) must show, that he has an interest in the doen- 
ments, the production of which he seeks. There can be no objection to 
this mode of expressing the rule, provided the sense, in which the word 
interest is used, be accurately defined. But without such definition, it is 
obvious, that this mode of expressing the rule is unprofitable for instroo- 
tion. The word interest must here be understood with reference to the 
subject-matter to which it is applied.' * The word interest must, there- 
fore, in these cases be understood to mean, an interest in the produc- 
tion of a document for that specific purpose.' * Unless the meaning of the 
word interest be limited in the way pointed out, it is obvious, that the 
effect of a simple claim (perhaps without a shadow of interest) would be 
to open every muniment-room in the kingdom, and every merchant's ae- 
counts, and every man*s private papers, to the inspection of the merely 
curious.' In perfect keeping with these remarks is Mr. Wigram's ex- 
planation of the word material, when it is said, that the plaintiff has a 
right to the discovery of all matters which are material to his case. ' The 
word material (Points on the Law of Discovery, p. 65) is relative, — mate- 
rial with reference to the purpose, for which discovery is given, that is, 
material with reference to the plaintiff's case. Now the plaintiff's case, 
— in the sense in which the words are here used, — is that case, upon 
which the parties are about to go to trial.' Mr. Wigram afterwards 
quotes a passage from Lord Redesdale, in which, stating the general 
right of a plaintiff to a discovery of the matters alleged in the Bill, he 



98 EQUITY PLEADINGS. [CH. IV. 

and satisfactory, that all persons, who are interested in 
the object of the Bill, are necessary and proper par- 
ties. All these exceptions will be found to be gov- 
erned by one and the same principle, which is, that, 
as the object of the general rule is to accomplish the 
purposes of justice between all the parties in interest, 
and it is a rule founded, in some sort, upon puUic 
convenience and policy, rather than upon positive prin- 
ciples of municipal or general jurisprudence, Courts 
of Equity will not suffer it to be so applied as to de- 
feat the very purposes of justice, if they can dispose 
of the merits of the case before them without preju- 
dice to the rights or interests of other persons, who 
are not parties, or if the circumstances of the case 
render the application of the rule wholly impracti- 
cable.* On the other hand, if complete justice be- 
tween the parties before the Court cannot be done 
without other parties being made, whose rights or in- 
terests will be prejudiced by a decree ; then the Court 
will altogether stay its proceedings, even though those 
other parties cannot be brought before the Court ; for 
in such cases the Court will not, by its endeavours to 
do justice between the parties before it, risk the doing 
of positive injustice to other parties, not before it, 
whose claims are or may be equally meritorious.' We 
shall presently have occasion to notice some illustra- 

J Cockburn v. Thompson, 16 Ves. 321, 326; Adair v. New RiTer 
Company, 11 Ves. 429; Wendell v. Van Rensselaer, 1 John. Ch. R. 
349, 350 ; Wiser r. Blackley, 1 John. Ch. R. 437 ; Brasher v. Van Cort- 
landt, 2 John. Ch. R. 245, 247 ; West v, Randall, 2 Mason, R. 190- 196 ; 
Hallett V. Hallett, 2 Paige, R. 15 ; Joy v. Wirtz, 1 Wash. C. R. 617; 
Hallett V. Hallett, 2 Paige, R. 18, 19; Elmendorf «. Taylor, 10 Wheat. 
R. 152; Post, §94-96, 130. 

s Hallett V. Hallett, 2 Paige, R. 15 ; West v, Randall, 2 Mason, 190 
- 196 ; Fell v. Brown, 2 Bro. Ch. R. 575 ; Joy v, Wirtz, 1 Wash. C. R. 
517 ; Marshall v. Beverley, 5 Wheat. 313 ; Ward v. Arredondo, 1 Paine, 
Cir. R. 410 ; S. C. 1 Hopk. R. 213 ; Post, § 130- 134. 



100 EQUITY PLEADINGS. [CH. IV. 

cannot be brought before the Court, and the fact is 
so charged in the Bill, the Court will ordinarily pro- 
ceed to make a decree against the partners, who are 
witbin the jurisdiction ; with this qualification, how- 
ever, that it can be done without manifest injustice to 
the absent partner.^ 

§ 79. This ground of exception is peculiarly appli- 
cable to suits in Equity in the Courts of the United 
States, which suits can in general be maintained only 
by and against citizens of different States. If, there- 
fore, the rule as to parties were of universal opera- 
tion, many suits in those Courts would be incapable 
of being sustained therein, because all the proper or 
necessary parties might not be citizens of difierent 
States ; so that the jurisdiction of the Court would be 
ousted by any attempt to join them.' On this account 
it is a general rule in the Courts of the United States 
to dispense, if consistently with the merits of a case 
it can possibly be done, with all parties, over whom 
the Court would not possess jurisdiction.' 

^80. It is usual (as has been already stated) to 



1 Cooper, Eq. PI. 35; Mitf. Eq. PI. by Jeremy, 31, 164; Cousladv. 
Cely, Prec. Ch. 83 ; Darwent v. Walton, 2 Atk. 510; Whalley v, Whal- 
ley, 1 Vern. 487 : Milligan v. Milledge, 3 Cranch, 220. 

9 West V. Randall, 2 Mason, R. 196 ; Russell v. Clarke, 7 Cranch, 69, 
98 ; MQligan v. Milledge, 3 Cranch, 220 ; Simms v, Guthrie, 9 Cranch, 
19, 25 ; Elmendorf v. Taylor, 10 Wheat. R. 152 ; Mallow «. Hinde, 19 
Whe?t. R. 193; Harding r. Handy, 11 Wheat. R. 103; Ward v. Arw- 
dondo, 1 Paine, C. R. 413, 414. 

3 Ibid. ; Ante, ^ 78. By the Act of Congress of February 28, 1839, 
ch. 36, Sect. 1, an important alteration has been effected. That Act pro- 
vides ; ** That where, in any suit at law or in equity, commenced in any 
Court of the United States, there shall be several defendants, any one or 
more of whom shall not be inhabitants of or found within the district, 
where the suit is brought, or shall not voluntarily appear thereto, it sbtU 
be lawful for the Court to entertain jurisdiction, and proceed to the trial 
and adjudication of such suit between the parties, who may be properly 
before it ; but the judgment or decree rendered therein shall not oondade 



1 



102 EQUITT PLEADINGS. [CH. IV. 

I 
I 

i cidentally alluded to), that persons, who are out of the 
I jurisdiction, and are ordinarily proper and necessary 
1 parties, can be dispensed with, only when their inter- 
ests will not be prejudiced by the decree, and when 
they are not indispensable to the just ascertainment of 
the merits of the case before the Court.* The doc- 
trine ordinarily laid down on this point is, that where 
the persons, who are out of the jurisdiction, are merely 
passive objects of the judgment of the Court, or their 
rights are merely incidental to those of the parties 
before the Court, then, inasmuch as a complete decree 
may be obtained without them, they may be dispensed 
with.' But if such absent persons are to be active in 
the performance or execution of the decree;' or if 
they have rights wholly distinct from those of the other 



^ Ante, § 77 ; West v, Randall, 3 Mason, 190-198 ; Mallow v. Hinde, 
12 Wheat. R. 193 ; Russell o. Clarke's Ex'ors, 7 Cranch, 72. 

a Mitf. Eq. PI. by Jeremy, 31, 32 ; Id. 164, 165 ; Meux v. Maltby, 2 
Swanst. R. 378. 

' 3 Sir Thomas Plumer (Master of the Rolls), in Meux v. Maltby, S 
Swanst. R. 278, went largely into the general rule and the exceptioos. 
In that case a joint stock company, authorized by act of Parliament to 
bring suits in the name of their treasurer, purchased an estate, peudiog 
a suit against the vendors, to compel the specific performance of aa 
agreement to grant a lease of a part. On a Bill by the vendee against 
the treasurer and directors, the plaintiff were declared entitled to a lease, 
and the treasurer was enjoined not to disturb their possession. But the 
Court refused to decree an execution of the lease ; as the rest of the 
proprietors were not parties, being very numerous ; and the Court would 
not compel them as absentees to do any act. On that occasion the learn- 
ed Judge said : ** The only novelty is, that the Bill requires an act to be 
done by the absentees. Not having them before the Court, though their 
rights may be bound, there is a difficulty in making them act. The 
plaintiff requires special performance of the agreement ; and it would 
hardly be sufficient, supposing it proper, for a few to execute a lease on 
behalf of the rest. In a conveyance of the interest, all must join. But 
that difficulty presents no objection to binding the rights of the parties not 
before the Court. That is authorized by every one of the cases referred 
to. If the Court cannot proceed to compel the defendants to do the act 
required, it must go as far as it can." 



104 EQUITY PLEADINGS. [CH. <T. 

or interests ; but the suit, so far at least as their rights 
and interests are concerned, should be stayed ; for to 
this extent it is unavoidably defective.^ In many in- 
stances the objection will be fatal to the whole suit. 
In others, it will not prevent the Court from proceed- 
ing to the decision of other questions between the 
parties actually before it, even though such a decision 
may incidentally touch upon, or question, the rights of 
the absent parties.^ 

§ 82. A few cases will serve to illustrate this doc- 
trine with its accompanying qualifications. Thus, 
where a suit is brought to recover a debt against part- 
ners, and one is out of the jurisdiction, a decree may 
(as we have seen) be had against the other.' The 
reason seems to be, that in such a case, as each part- 
ner is liable for the whole debt, and each in fact 
represents the whole interest of the partnership, no 
injustice is done by making the one before the Court 
solely liable, and dispensing with the other partner ; 
as, indeed, might be done at law in a similar case.^ 
But if the Bill were brought by one partner against 

1 Ibid. 

8 Inchiquin v. French, Ambler, R. 34 ; Attorney-General v. Baliol 
College, 9 Mod. R. 409 ; Fell v. Brown, 2 Bro. Ch. R. 275 ; Browne V. 
Blount, 2 Ru88. & M. 83 ; Mallow v. Hinde, 12 Wheaton, R. 193. In 
Attorney-General v. Baliol College, 9 Mod. R. 409, Lord Hardwicke is 
reported to have said, in answer to an objection, that the University of 
Glasgow was not a party to the original decree, and so not boand by it ; 
^* Glasgow indeed was no party, nor indeed were the plaintiffs obliged to 
make that University party, for it is a corporation, and out of the kingdom 
and reach of process of this Court, which is always an excuse for not 
making them parties ; therefore, this is no objection to make this a void 
decree as to them." With reference to the case before the Court, this 
might be entirely correct. But the language is far too broad and unqual- 
ified, if it was meant to be used generally; for there are many cases, 
where a decree against a party out of the jurisdiction would be void, so 
far as it touched his interests. See Fell v. Brown, 2 Bro. Ch. R. 375, 
276 ; Browne v. Blount, 2 Russ. & M. 83 ; Post, $83-85. 

8 Ante, ^ 78. 

4 Darwent v. Waltem, 2 Atk. 510 ; Coaalad v. Cely, Free. Ch. 83. 



CH. IV.] PARTIES TO BILLS. 105 

several other copartners, one of whom was out of the 
jurisdiction, praying for ^n account and dissolution of 
the partnership ; there the case might be very differ- 
ent ; for the absent partner would have a distinct and 
independent interest, and would seem to be an indis- 
pensable party, since the decree must affect that 
interest, and indeed would pervade the entire opera- 
tions of the partnership.^ 

^ 83. Another case may be stated, where the ob- 
jection was held fatal to the entire objects of the suit. 
A judgment creditor sued out an elegitj and filed a 
Bill for the purpose of an equitable execution against 
certain real estates, vested in trustees upon certain 
trusts, under which the debtor was then entitled to the 
rents and profits during his life. The trustees were 
defendants in the Bill ; but the debtor was abroad, and 
had been so for several years, and, therefore, could not 
be made a party to the suit. The Court held the 
objection fatal, notwithstcmding the impossibility of 
the debtor being made a party, because he was the 
very person, whose interests were sought to be affected 
by the decree.* The sound reason, which dictati^d 
this decision, is obnous ; and any attempt to sustain 
the jurisdiction in such a case would subvert the very 
foundation, on which the rule in Equity, requiring 
the joinder of the interested parties, rests ; for the 
decree would either have concluded, without a hear- 
ing, the interests of the only person really interested 
to contest it ; or have delivered over the whole mat- 
ter to new and independent litigation. 

§ M. Upon the like ground, where a second mort- 
gagee brought a Bill against the first, to redeem his 

1 See BemmnoDt v. Meredith, 3 Yes. & IS. 18U ; Kvans v Stuken, 1 

, R. 39; Vu Sandau v. Moore, I Kuw. R. 441. 
* Browne v. Blount, 9 Ktue. & M. 83. 

CQ. PL. 14 



106 EQUITT PLEADINGS. [CH. IT. 

mortgage, without making the heir of the deceased 
mortgagor a party, and the Bill alleged, that he was 
abroad in America; it was held by the Court, that 
the heir was an indispensable party ; for the natural 
and common decree in such a case is, that the second 
mortgagee shall redeem the first mortgage, and that 
the mortgagor shall redeem him, or stand foreclosed. 
Und^r such circumstances, the foreclosure would con- 
clude the interests of the heir in a suit, to which he 
was no party. But it was at the same time held, 
that, in that case, the personal representative of the 
mortgagor was not an indispensable party.* 

§ 85. Another case, standing upon analogous rea- 
soning, is, where the bail of a judgment debtor 
brought a Bill to stay the proceedings against them 
by the creditor, and alleged fraudulent conduct on the 
part of the creditor, and that he had charged the 
debtor with sums never paid, and had collusively sdid 
the debtor's property remitted for sale, and prayed an 
account of all the mercantile transactions between the 
creditor and debtor, and the Bill charged the debtor to 
be out of the jurisdiction of the Court ; it was held, 
that the Bill could not be sustained without the prin- 
cipal being brought actually before the Court ; for he 
was an indispensable party to the account. And the 
case was likened to a suit brought by sureties, who 

1 Fell V. Brown, 2 Bro, Ch. R. 276-279 ; Palk v, Clinton, 12 Ves. 
58, 59 ; Post, § 186. If the BUI in this case had sought only a redemp- 
tion of the first mortgage, without any foreclosure, there does not seem 
any sound reason, why the Court might not have allowed the second mort- 
gagee to maintain the Bill without making the heir a party, if the sec- 
ond mortgagee was wQling to take a decree without any account, which 
would bind the heir of the mortgagor. The only effect of the decree 
then would be, to put the second mortgagee in the place of the first ; 
leaving the amount due on the first mortgage open to examination, in the 
same way, as if there had been an assignment of the first mortgage to 
the second mortgagee. 



CH. IV.] PARTIES TO BILLS. 107 

could not be relieved as against the obligee, without 
bringing the obligor before the Court.^ 

^ 86. The same doctrine may be illustrated by put- 
ting the case of fraud, where several persons, having 
distinct interests, claim under independent titles the 
whole fund. In such a case, all the persons, who 
claim by the diflfcrcnt titles, ought to be made parties ; 
for a Court of Equity will not, at least, unless under 
very special circumstances, change the hands, in 
which the funds are already placed, especially when 
the tide of the plaintiff is equally open to controversy 
on behalf of all the claimants. And in such a case, 
it will ordinarily constitute no sufficient ground for 
proceeding in the suit, that one or more of the claim- 
ants is out of the jurisdiction.^ 

§ 87. It has been already stated, that in some cases 
the Court will proceed to a decree against the parties 
before it, even though other proper parties may be out 
of the jurisdiction.^ In such cases, the absent party 
cannot be compelled to do any act. But if the disix)- 
sition of the property in controversy is in the jrawcr of 
the other parties, the Court may act upon them and 
through them upon that proix^rty.^ Thus, where the 
heir at law of a testator, who had devised his real 
estate on certain trusts, was out of the jurisdiction of 
the Court, and that fact was charged in a Bill, seeking 
to enforce the trusts, and proved at the hearing, the 
Court directed an execution of the trusts, u])on full 
proof of the execution of the will and the sanity of 
the testator;^ although, ordinarily, uimn such a Bill, the 



> Rovarmy v. Grmjion, 3 Swanst. R. 145, note. 

> RihmU v. Clarke's Kx'on, 7 Cranch, iM. 
' Asia, ^ 78. 

« 9 Maad. Ch. Pr. 144 ; Smith «. Hibernian Mine Company, 1 Sch. & 
liBfr. S38-940; AdIa, t 8i- 
* Mill. Eq. PI. by Jeremy, 171 - 173 ; Smith v. Uibemiaii Mine Com- 



108 EQUITY PLEADINGS. [CH. IV. 

heir at law is deemed a necessary party.^ But in 
such a case, it is clear, that the heir at law would not 
be bound by the decree, but he might file a Bill to set 
aside the decree as erroneous^ or otherwise assert his 
title at law. And the evidence taken in the case 
could not be read against him, if he should afterwards 
dispute the will.* So that the Court could not, on 
such a Bill, establish the will against him, or in any 
manner ensure the title under its decree against his 
claim.^ In this case, it is obvious, that the Court was 
placed in a predicament, in which one of two altema- 

I>any, 1 Sch. & Lefr. 238-340 ; Williams v. Whinyates, 2 Bro. Ch. R. 
399 ; Harris v. Ingledew, 3 P. Will. 92, 94 ; French v. Baron, 2 Atk. 
120 ; Thompson v. Topham, 1 Y. & Jerv. 556 ; Cooper, Eq. PI. 38. 

1 Lord Redesdale (Mitf. Eq. PL by Jeremy, 171, 172,) has made the 
foUowing remarks on this subject. They show a nice distinction between 
the case of devisees and heirs. *' To a Bill, " says he, '*to cany into 
execution the trusts of a will disposing of real estate by sale or charge of 
the estate, the heir at law of the testator is deemed a necessary party, 
that the title may be quieted against his demand ; for which purpose the 
Bill usually prays, that the will may be established against bim by the 
decree of the Court. But if the testator has made a prior will containing 
a different disposition of the same property, and which remains uncancel- 
led, and has not been revoked except by the subsequent will, it has not 
been deemed necessary to make the persons claiming under the prior will 
parties ; though if the subsequent will be not valid, those persons may 
disturb the title under it, as well as the heir of the testator. If, however, 
the prior will is insisted upon as an effective instrument, notwithstanding 
the subsequent will, the persons claiming under it may be brought before 
the Court to quiet the title, and protect those who may act under the or- 
ders of the Court in executing the latter instrument." He adds ; *' If no 
heir at law can be found, the King^s Attorney-General is usually made 
a party to a Bill for carrying the trusts of a devise of real estate into exe- 
cution, supposing the escheat to be to the Crown, if the will set up by the 
Bill should be subject to impeachment. But if any person should claim 
the escheat against the Crown, that person may be a necessary party." 
But see Orders in Chancery of 1841, Order 30, 31 ; 1 Craig & Phill. 377; 
and the 49th and 50th Rules of the Supreme Court of the United States, 
January term, 1842; Ante, § 81; Post, ^ 150, 163. 

a Cooper, Eq. PI. 38 ; Mitf. Eq. PI. by Jeremy, 172, 173. 

3 Mitf. Eq. PI. by Jeremy, 172, 173 ; Smith V. Hibernian Mine Co., 1 
Sch. & Lefr. 240, 241 ; Thompson v. Topham, 1 Y. & Jerv. 656. 



110 EQUITT PLEADINGS. [cH. IV. 

tees or distributees are out of the jurisdiction of the 
Court, and cannot conveniently be made parties, either 
as plaintiffs or as defendants, the Court will dispense 
with them, and proceed to decree the shares of the 
parties before it.* Such a decree is of course not con- 
clusive upon the absentees, or other persons not made 

Pritchard v. Hicks, 1 Paige, R. 373. But see Ross v. Crary, 1 Paige, R. 
419, note ; and Hallett v. Hallett, 2 Paige, R. 20, 21 ; Mitf. Eq. PI. by 
Jeremy, 168, note (o) ; Cooper, Eq. PI. 39, 40 ; Gilb. For. Rom. 158 ; 
Hawkins v. Hawkins, 1 Hare, R. 543, 546 ; Weatherby «. St. Giorgio, 3 
Hare, R. 624, 626 ; Harvey «. Harvey, 4 Beavan, R. 215, 230, 331 ; Post, 
§ 207, 207, a. This seems the general rule as to residuary legatees. But 
a question has been made, whether, in such a ease, it is indispensable to 
make all the residuary legatees, when known, technical parties by name, 
or whether it is sufficient for a residuary legatee to sue on behalf of him- 
self and all other residuary legatees, in which case they are, in a sense, 
deemed parties. (Leigh v. Thomas, 3 Yes. 313.) In Brown v. Ricketts, 
3 John. Ch. R. 555, Mr. Chancellor Kent seems to have thought, that all 
the residuary legatees should be technically parties by name ; and he relied 
on Parsons v. Neville, 3 Bro. Ch. R. 365, and Cockburn v. Thompson, 16 
Yes. 327, 328. He held the same doctrine in Davoue «. Fanning, 4 
John. Ch. R. 199. The case in 3 Bro. Ch. R. 365, was the case of re- 
siduary devisees, not of residuary legatees. But in 16 Yes. 338, where 
Lord Eldon refers to Lord Thurlow^s opinion, he considers it applicable to 
residuary legatees ; but still admitting of exceptions, where it is not neces- 
sary or convenient to bring all before the Court ; as, for example, where a 
residue is left to the individual members of a society, which is very numer^ 
ous. See Cooper, Eq. PI. 39, 40. In Kettle v. Crary, 1 Paige, R. 417, 
419, 420, note, Mr. Chancellor Jones held, that in all cases a residuary 
legatee might sue in behalf of himself and all others, without making them 
technically parties. Referring to the case in 16 Yes. 338, he said ; " I de- 
duce from that and other cases the principle, that in the case of the residu- 
ary legatees, in common with all the other cases, where it is impracticable 
to make parties, or when the inconvenience and expense would greatly 
overbalance the utility of the proceeding, and all the rights and interests of 
the whole class of persons, to be affected by the decree, may be protected 
and preserved by their subsequent accession to the suit or the reference be- 
fore the Master, this Court will dispense with them as parties on the rec- 
ord, and give the opportunity of introducing them into the suit by subse- 
quent proceedings before the Master." See Ross v. Crary, 1 Paige, R. 
413, where Mr. Chancellor Walworth, seems to have approved the same 
doctrine ; and Hallett v. Hallett, 3 Paige, R. 19, 20, where he directly 
affirmed it. See also West o. Randall, 3 Mason, R. 190- 193. 
1 Harvey v, Harvey, 4 Beavan, R. 315, 830, 221 ; Post, $ 807, 307, a. 



CH. IT.] PARTIES TO BILLS. Ill 

parties. But the general rule is dispensed with, be- 
cause otherwise persons having clear rights would 
without their own default 1x3 precluded from asserting 
them, even when the rights of others would not neces- 
sarily be prejudiced thereby.^ 

^ 90. U|ion a similar ground, one of several of the 
next of kin of an intestate, entitled to distribution, 
may sue for his distributive sliare without making the 

1 West 9. Randall, 2 Mason, R. 181, li»0- 199 ; Cockburn v. Thomp- 
inn. 10 Vea. 3*21, 328; Brown v. RickctU, 3 John. Ch. R. 555, 55G ; 
Uradwifl V. Harper, Amhl. R. 375; 2 Madd. Ch. Pr. 146. Mr. Cooper, 
in hia Equity Pleadings, after stating, that all the residuary legatees 
ought to be parties, and referring to 3 Bro. Ch. R. 239 and 365, in sup- 
port of the proposition, has added ; *' But one of the next kin of an in- 
testate may sue for his distributive share, and the Master will be directed 
by the decree to inquire and state to the Court, who are all the next of 
kia of the intestate, and they may come in under the decree. But if the 
plaintifl* knows and states in his Bill, who are the other next of kin, it 
seema, that he must make them parties to the suit." Ijord Chief Baron 
Gilbert (For. Rom. 158) says, that where several persons are entitled as 
next of kin under the statute of distributions, and one only of them is 
brought on to a hearing, the Court will not proceed to a decree. This 
appueat coBtrariety may be explained by the suggestion, that in the case 
supposed by Mr. Cooper, the Bill alleges, that the other distributees are 
ankaown; and in that supposed by Lord Chief Baron Gilbert, that tho 
other diflinbaieea are known, and the Bill has no avernment to the con- 
trary. Probably, if the distributees are very numerous, even if known, a 
Bill aufht be maintained by one or more on behalf of all, as was dune in 
the case af appointees under a will in Manning v. Thesiger, 1 Sim. & 
Sla. 106. In Waite v. Temple, I Sim. 6l Stu. 319, the Bill was 
brought for the administration of a testator's cMate, who had given one 
ftAh share of the residue of his estate to one T. P. or his heirs, executors, 
aad administrators. T. P. dit^d in the testator's lifetime. The executors 
of T. P. were made parlies, but not his next of kin. The Vioe-C!hanreI- 
lor Mid« that the next of kin ought to be made parties, upon a claim as 
p tT M o n tm dmgnai^y and the Master should inquire, who were the next of 
kia, aad with liberty to file a supplemental Bill. He added, that if one 
of the next of kin had in that character been made a party to the suit, and 
the claim of the next of kin had been rais«;d upon the record, then any other 
found by the Master to be next of kin might have been heard by 
si, though not parties. But where no one of the next of kin w in 
that character a party, nor the claim raised upon the record, there must 
be a aappleBienial Bill. 



114 EQUITY PLBADINGS. [CH. HT. 

made parties ; not only, that all the persons in interest 
may be represented, and may, if they fdease, contest 
the tide ; but also, that they may contribute am<Hig 
themselves in the proper proportions, if the rent charge 
is established, and complete Justice be done between 
them.^ But there are certain well known exceptions 
to this rule. Thus, for example, if, in a Bill brought 
against the owners or terre-tenants of one of the es- 
tates charged, it should appear upon the pleadings, 
that the other owners or terre-tenants are unknown ; 
or that it is uncertain, what the other estates, which 
are chargeable, are ; or whether the tide or chaise 
against them is not lost, or become incapable of being 
distinguished by lapse of time or otherwise ; the Court 
would dispense with the other parties ; and, at least 
in the case of a charity, proceed to decree between the 
parties before the Court.^ 

^ 94. Another exception to the general rule, as to 
parties, is, where they are exceedingly numerous, and 
it would be impracticable to join them without almost 
interminable delays and other inconveniences, which 
would obstruct, and probably defeat the purposes of 



1 Attorney-General v. Wyburgh, 1 P. Will. 599 ; Attorney- General v. 
Shelly, 1 Salk. 163; Attorney-General v. Jackson, 11 Ves. 367; Adair 
V, Now River Co., 11 Ves. 444. 

2 Attorney-General v, Wyburgh, 1 P. Will. 599 ; Attorney-General v. 
Shelly, 1 Salk. 163; Attorney-General v. Jackson, 11 Ves. 367 ; Adair 
V. New River Co., 11 Ves. 444 ; Anon., Gary, R. 33. Although the reaaon- 
ing would seem to justify the laying down of the proposition in all caaea 
of rent charge, where the exception exists, I have not ventured to atate 
it as applicable, except to cases of charity, for it is in those cases, that the 
exception has been allowed and acted on. But even in cases of chahtiea, 
the Court will take care of the rights and interests of the terre-tenanta 
before the Court, as well as of other terre-tenants not made parties, by 
directing inquiries before the Master, whether there are any such, and 
how far tliey are chargeable. See on this subject the elaborate judgment 
of Lord Eldon, in Attorney-General v, Jackson, 11 Ves. 366-373 ; and 
Benson v. Baldwin, 1 Atk. 596. 



116 EQUITY PLEADINGS. [CH. IT. 

would really be deprived of all protection.* But the 
doctrine above stated as to the necessity of all persons 
being made actual parties, must now be received with 
many qualifications, if it be maintainable at all in its 
general signification, as will appear more fully in our 
subsequent remarks.^ 

^ 95. Thus, we see, that by the general rule the 
parties, although numerous, are still ordinarily required 
to be brought before the Court ; that there is an excep- 
tion allowed, founded on the mere fact of numerous- 
ness, when it may amount to a great practical incon- 
venience or positive obstruction of justice ; and again, 
that qualifications are introduced, which limit the efiect 
of the exception to cases within the general mischiefis, 
which it was intended to remedy. In all cases gov- 
erned by the exception, it seems proper to allege in 
the Bill, unless it is otherwise apparent upon its face, 
that the parties are too numerous to make it practi- 
cable, even if known, to prosecute the suit, if all are 
made parties.^ 

^ 96. In truth, the same general principle pervades 
the whole course of Equity proceedings, in all these ap- 
parently irreconcilable or anomalous cases. It has 
been well observed, that the general rule, being estab- 
lished for the convenient administration of justice, 
ought not to be adhered to in cases, in which, consist- 
ently with practical convenience, it is incapable of 
application ; for then it would destroy the very purpose 



1 Mitf. Eq. PI. by Jeremy, 167-171 ; Farrell v. Smith, 3 Ball & 
Beau. 337, 341, 343 ; Kenyon v. Worthington, 3 Dick. R. 668 ; Hallett 
V. Hallett, 3 Paige, R. 18-30. 

« Post, § 107-115, 130, 133, 135, 135, a. 

3 Weld V, Bonham, 3 Sim. & Stu. 91. See Wallworth v. Holt, 4 
Mylne & Craig, 619, 636-639 ; Harvey v. Hanrey, 4 Beavan, R. 315, 
380, 831 ; Ante, § 94 ; Post, § 133, a, 133, b, 149, 807, 307, «, 816. 



118 EQUITY PLEADINGS. [cH. IT. 

OU8 is it to attain the purposes of substantial justice, 
that it will generally require the Bill to be filed, not 
only in t)ehalf of the plaintiff, but also in behalf of all 
other persons interested, who are not directly made 
parties (although in a sense they are thus made so), so 
that they may come in under the decree, and take the 
benefit of it, or show it to be erroneous, or entide 
themselves to a rehearing.^ The Court will go fiir- 
ther, and in such cases, it will entertain a Bill, or 
Petition, which shall bring the rights and interests of 
the absent parties more distincdy before the Court, if 
there is any certainty, or even any danger, of injury or 
injustice to them.^ We shall presendy see this doc- 
trine fully borne out, when we advert to the cases, 
which illustrate the nature, and character, and extent 
of this class of exceptions.^ 

§ 97. The most usual cases arranging themselves 
under this head of exceptions are; (1.) where the 
(}uestion is one of a common or general interest, and 

* West V. Randal], 2 Mason, R. 193 ; Adair v. New Rirer Company, 
11 Ves. 444 ; Cocklmrn v. Thompson, 16 Ves. 326-328; Good V. Ble- 
wit, 19 Ves. 336 ; Ante, ^ 94; Post, ^ 144, 150, 207-216. The case of 
Gm>d V, Blewit, 13 Ves. 397 ; S. C. 19 Ves. 336, shows with what solici- 
tude the Court will watch over and protect the interests of the abseot per- 
sons, not parties, in all cases of this sort. See also Angell «. Haddcm, 1 
Madd. R. 429; Durch r. Kent, 2 Vem. 260. Lord Redesdale, with refer- 
ence to this subject, used the following language (Mitf. Eq. PI. hy Jeremy, 
178) : — *' In some cases, when it has appeared at the hearing of a canoe, 
that the personal representative of a deceased person, not a party to the 
suit, ought to be privy to the proceedings under a decree, but that no qoee- 
tion could arise as to the rights of such representative on the hearing, the 
Court has made a decree directing proceedings before one of the Mastea 
of the Court, without requiring the representative to be made a party by 
amendment or otherwise ; and has given leave to the parties in the rah 
to bring a representative before the Master, on taking the accounts at 
other proceedings directed by the decree, which may concern the rights of 
such representative. And a representative thus brought before the Mas- 
ter, is considered as a party to the cause in the subsequent proceedings." 

2 Ibid. See also Weld v. Bonham, 2 Sim. &, Stu. 91 ; Ante, ^ 96. 

3 Post, §97-135. 




120 EQUITY PLEADINGS. [CH. IV. 

course.^ And it has been well observed, that no case 
can call more strongly for indulgence, than where a 
number of seamen have interests in the same sulject- 
matter ; for their situation at any period, how many 
are living at any one given time, how many are dead, 
and who are entitled to representation, cannot ordi- 
narily be ascertained.^ 

§ 99. Similar reasons have induced the Court to 
depart from the general rule in another class of cases, 
where the suit is brought on behalf of many persons in 
the same interest, and all the persons answering that 
description cannot easily be discovered or ascertained. 
Thus, a few creditors may maintain a suit on behalf of 
themselves and all the other creditors of a deceased 
debtor, against his proper representatives for an ac- 
count and application of his assets, real as well as 
personal, in payment of their demands.^ And it seems 

Ibid. ; Chancey v. May, Free. Ch. 592 ; Leigh v. Thomas, 2 Ves. 
312 ; Pearson v. Belchier, 4 Ves. 627. The case of Moffat v. Far- 
quharson, 2 Bro. Ch. R. 338, contains a contrary doctrine ; but the doc- 
trine in that case has been overruled. See 2 Bro. Ch. R. 338, Mr. Belt's 
note (1). See also Cullan v, Duke of Queensbury, 1 Bro. Ch. R. 101, 
and Mr. Belt's note (1) ; Lloyd v. Loaring, 6 Ves. 777. 

2 Good V. Blewit, 13 Ves. 397 ; Leigh v. Thomas, 2 Ves. 312 ; West 
V. Randall, 2 Mason, R. 193, 194 ; Hendrick v. Robinson, 2 John. Ch. R. 
296, 297. In the case of Good v. Blewit, 13 Ves. 397, which was the 
case of a foreign crew suing for the benefit of all the crew ; the Master 
of Rolls (Sir William Grant) took notice of the fact, that it was a case, in 
which the defendants sued for the whole. He said ; " It is not a case, 
where a great number of persons, who ought to be defendants, are 
brought before the Court, but are to be bound by a decree against a few." 
This latter circumstance, however, would not be decisive in all cases of 
defendants ; though it might be in some. See Meux v. Maltby, 2 Swanst. 
R. 296-299, and the cases there cited ; Mayor of York v. Pilkington, 1 
Atk. 284 ; Calvert on Parties in Equity, 46. 

3 1 Mont. Eq. PI. 62; Mitf. Eq. PI. by Jeremy, 166. In Bumeyr. 
Morgan, 1 Sim. & Stu. 358, it was held, that a mortgagee cannot sue in 
behalf of himself, and all other creditors, because he has no common in- 
terest with them ; and when a creditor sues in behalf of all, it is permitted 
upon the ground of there being a common interest in all. Post, § 102. 



\ 



122 EQUITY PLEADINGS. [CH. IV. 

creditors will not be permitted to bring a Bill of this 
sort, for an account and administration of the assets, 
without saying in the Bill, that it is brought on behalf 
of themselves, and all the rest of the creditors ; for 
otherwise, the executor or administrators might be 
compellable to account de novo with all the other 
creditors in other Bills.^ But when the Bill is brought 



/ plainant*8 Bill, that an account of the whole fund most be taken, and 
I that there are other parties interested in the distribution thereof, to whom 
f the defendants would be bound to render a similar account, the latter may 
object, that all, who have a common interest with the complainants, are 
not before the Court. In these cases, to remedy the practical incon- 
venience of making a great number of parties to the suit, and compelling 
those to litigate, who might otherwise make no claim upon the defend- 
ants, or the fund in their hands, a method has been devised of permitting 
the complainants to prosecute on behalf of themselves, and all others 
standing in the same situation, who may afterwards elect to come in and 
claim as parties to the suit, and bear their proportion of the expenses of 
the litigation. If such parties neglect to come in under the decree, after 
a reasonable notice to them for that purpose, the fund will be distribated 
without reference to any unliquidated or unsettled claims, which they 
might have had upon the same. But if the rights of such absent parties 
are known and ascertained by the proceedings in the suit, provision will 
be made for them in the decree. (Anonymous, 9 Price's Rep. 210.) In 
either case, the Court will protect the defendants against any further liti- 
gation in respect to the fund." In the case of creditors coming in be- 
fore the Master, they have been held entitled to rehear the cause, though 
not technically parties, because the decree affected their interest. Giffiird 
r. Hort, 1 Sch. & Lefr. 409. 

1 Leigh V. Thomas, 2 Yes. 313 ; Brown v, Ricketts, 3 John. Ch. R. 
553, 555, 556. But see Brinckerhorff v. Brown, 6 John. Ch. R. 151. 
In the ordinary proceedings before the Master, all other creditors, except 
those coming in before the Master, and proving their debts, are generally 
excluded from the benefit of the decree. But still they may file a Bill, 
subsequently, to establish their own rights, not disturbing what has been 
done under the decree. But, sometimes, the Court gives directions, in 
\ cases of this sort, to the Master, to ascertain the claims of all persons in- 
terested. In such a case, if the Master reports any claims due to particu- 
lar creditors, and others, who do not come in under the decree, the Court 
will sometimes retain the Bill for their benefit, and direct the Master 
to advertise anew for them to come in, and take the benefit of it; as, 
for example, if it should appear upon the Master's report, that they were 
beyond sea, or out of the jurisdiction at the time. Lord Eldon, in Good 



\ 



124 EQUITY PLEADINGS. [CH. IV. 

istration of assets, as well as burdensome on the fund 
to be administered. For, if a Bill be brought by a 
single creditor for his own debt, he may, as at law, 
obtain a preference by judgment in his favor over other 
creditors in the same degree, who may not have used 
equal diligence."^ There is great truth in this remark; 
for Courts of Equity are thus enabled to act fully upon 
their own favorite maxim, that Equality is Equity. But 
it does not disclose the whole ground of the doctrine. 
It is, on the other hand, the real danger of doing in- 
justice to parties not before the Court, where interests 
might be jeoparded without being represented; and 
the utter impracticability of making all the interested 
persons actually and technically parties, from their 
being unknown, or being so exceedingly numerous, 
that any obligation to join them all would amount to 
a positive denial of justice, which constitute the main 
grounds of the doctrine.^ 



^ Mitf. Eq. PI. by Jeremy, 166, 167. But a single creditor is not per- 
mitted in this way to acquire any preference over creditors of a higher 
degree, nor necessarily in all cases over those of an equal degree ; for 
wherever a single creditor brings a Bill, although no general account of 
the debts is directed ; but the course is, to direct an account of the per- 
sonal estato, and of that particular debt ; yet the common decree is, that 
that debt shall be paid in the course of administration. All debts, there- 
fore, of a higher nature, or even of an equal nature, may be paid by the 
executor, and must be allowed to him in his discharge. Attorney-General 
V. Cornthwaite, 2 Cox, R. 44 ; Bedford v, Leigh, 2 Dick. R. 708 ; New- 
land ». Champion, 1 Ves. 104 ; Peacock v. Monk, 1 Ves. 131 ; Pritchard 
V. Hicks, 1 Paige, R. 270; Anon., 3 Atk. 572. 

^ Chancey v. May, Prec. Ch. 592 ; Hendricks v. Robinson, 2 John. Oh. 
R. 206. When a single creditor sues for his own debt (as we have seen 
that he may], he need not make any person but the personal representa- 
tive of the deceased a party. We have also seen , that in such a suit, the 
usual decree is, not to direct a general account of the whole estate, but 
only a decree for an account of the personal assets, and the payment of 
the debt in the course of administration. But although this is the usual 
decree, it is not therefore to be considered as absolutely incompetent for 
the Court, upon such a Bill, to make a more general decree for a general 



126 EQUITY PLEADINGS. [CH. IV. 

with him in all the objects of the Bill.^ Upon this 
ground it has been held, that a mortgagee cannot sue 
on behalf of all the creditors in regard to his mortgage 
debt ; for he has no common interest with the credi- 
tors at large in enforcing it.^ Upon the same ground 
it has also been held, that if the plaintiff seeks to es- 
tablish a priority of right or charge, he cannot file a 
Bill on behalf of all the creditors ; but the latter must 
be actual parties ; for the suit is not homogeneous, or 
for objects equally beneficial to all the parties ; and 
therefore each creditor has a distinct right and interest 
to contest the plaintiff's claim.' But there are more 
recent authorities, which inculcate a contrary doc- 
trine, and establish, that a mortgagee may sue on be- 
half of himself and all other creditors, notwithstanding 
he claims a right to prior satisfaction out of the mort- 
gaged property.^ And perhaps a similar rule would 
apply to the case where a creditor claims any other 
priority of charge ; for if he files his Bill on behalf of 
all creditors, they are so far parties to the suit, that 
they have a right to appear and contest the validity of 
his asserted priority over other creditors.* 

§ 102. Upon similar grounds, where there are a 
number of creditors, who are parties to a deed of trust 



1 Post, § 157, 158. 

3 Burney v. Morgan, 1 Sim. & Sta. 358, 363 ; Jones v. GaiciA del 
Rio, 1 Turn. & Russ. 297 ; White v, Hillacre, 3 Younge & Coll. 597. 
See Palmer v. Dutcher, 7 Paige, R. 437 ; Calvert on Parties, § 10, 
p. 220. 

3 Newton v. Earl of Egmont, 5 Sim. R. 137 ; S. C. 4 Sim. B. 574, 
585 ; Post, ^ 133, note, 157, 158 ; Calvert on Parties, § 10, p. 231. 

* Greenwood v. Firth, 2 Hare, R. 241, note (b); Skey v, Bennett, 3 
Younge & Coll., New R. 405; White v. Hillacre, 3 Younge & Coll. 
597, 609, 610, note ; Post, § 158 ; Aldrich v, Westbrook, 5 Beavao, R. 
188 ; 1 Story, Eq. Jurisp. § 549. 

5 Whitaker v. Wright, 2 Hare, R. 310, 312-315; Owens v. Dicken- 
son, 1 Craig & Phill. 48, 56. 



128 EQUITY PLEADINOS. [CH. IV. 

were technically parties before the Court, would be al- 
most insuperable. A single creditor, in cases of this 
sort, would not be permitted by a Court of Equity to 
sue for his own single demand without bringing the 
other creditors in some form or manner before the 
Court, from the obvious inconvenience and apparent 
injustice in deciding upon the extent of their rights 
and interests in their absence.^ The substitution, 
therefore, of a few to sue for the benefit of the whole, 
at the same time, that it subserves the interests of all 
the creditors, by enabling them to make themselves ac- 
tive in the final apportionment and distribution of the 
trust funds, gives to the watchful and diligent an op- 
portunity of having prompt justice done to them, 
without any wanton sacrifice of the rights of others, 
or any sacrifice, not caused by the laches or indiffer- 
ence of the latter.^ 

A Mitf. Eq. PI. by Jeremy, 167. In Joy v. Wirtz, 1 Wash. Cir. R. 
417, which was a suit in Equity, brought by two creditors, for the pur- 
pose of setting aside a release made by all the creditors to a debtor upon 
an assignment of his estate for their benefit, Mr. Justice Washington 
thought, that all the creditors should have been made parties, or the Bill 
should have been brought on behalf of all ; for all of them might be 
affected by the decree, setting aside the release, as it would not be set 
aside as to a part of the creditors, and left to operate on others. On that 
occasion he said : '* Where the creditors are to be paid out of a particular 
fund, or are united in the same transaction so as to produce a privity be- 
tween them, all are to join, &c., either by name, or by being repre- 
sented by a part suing in the names of all." Post, § 157. 

8 The remarks of Lord Eldon on this subject, in Cockbum v. Thomp- 
son, 16 Ves. 327, deserve to be cited here. '* In the familiar case," says 
he, '* of creditors suing on behalf of themselves and all others, what an 
infinite number of valuable interests may be bound, in a sense, not abso- 
lutely. As, where the Court for convenience dispenses with the presence 
of parties, the principle leads it, by future arrangement, to find out the 
means of giving them an opportunity in some shape of coming in. Upon 
questions of marshalling, whether real estate is charged with debts, &c. 
the case may be sustained originally perhaps by persons having interests 
of the least value. But certainly any person, afterwards becoming inter- 
ested, would have his interest as much attended to, as if he had been orig- 



)30 EQUITY PLEADINGS. [CH. IT. 

tion, and a pa3niieiit of all the legatees.^ In a case of 
this nature, such a legatee might sue for his own legacy 
only.^ But a suit on behalf of all the other legatees 
has the same tendency to prevent inconvenience and 
expense, as a suit by one creditor on behalf of all the 
creditors of the same fund.^ Even in a suit brought by 

^ We have had occasion in a preceding note (Ante, § 89, note) to state, 
that there is some diversity of judicial opinion on the point, whether one 
residuary legatee can maintain a Bill for himself and all the other rendua- 
ry legatees, who are interested ; or whether he must make 'them teoli- 
nical parties to the Bill. If a legatee be the sole residuary legatee, there 
does not seem to be any real difficulty in his maintaining a Bill, either for 
himself alone, or for himself and all the other legatees and parties in 
interest ; for in either case a general account of the assets must be taken ; 
and the Master will, by the decree, be directed to inquire and state, who 
are the other legatees and other persons interested in the assets ; and the 
final decree, after the account taken, will be for such assets as belong to 
the residuary legatee after all other claims are paid. Of coarse, nnder 
the interlocutory decree all other legatees and persons interested will have 
a right to appear before the master, and assert their claims, whether the 
residuary legatee sue alone, or in behalf of all other persons interested. 
See Cooper, Eq. PI. 39, 40 ; Bennett v. Honeywood, Ambler, R. 709, 
710 ; Montagu v. Nucella, 1 Russ. R. 173 ; Kettle o. Crary, 1 Paige, R. 
417, note ; Hallett v. Hallett, 3 Paige, R. 20, 21. 

a Mitf. Eq. PI. by Jeremy, 167 ; Brown «. Ricketts, 3 John. Ch. B. 
653 ; Haycock v. Haycock, 2 Ch. Cas. 124 ; Attorney-General v. Ryder, 
2 Ch. Cas. 93. See Pritchard v. Hicks, 1 Paige, R. 273 ; Fisk v. How- 
land, 1 Paige, R. 23 ; 1 Mont. Eq. PI. 62, 63. 

3 Mitf. Eq. PI. by Jeremy, 167 ; Haycock ». Haycock, 2 Ch. Cas. 124; 
Lloyd V. Loaring, 6 Ves. 779 ; Good v. Blewit, 13 Ves. 339 ; Cockbam 
V, Thompson, 16 Ves. 327 ; Attorney -General v, Ryder, 2 Ch. Cas. 178; 
Brown v, Ricketts, 3 John. Ch. R. 553 ; Fisk «. Howland, 1 Paige, R. 
20, 23; Kettle r. Crary, 1 Paige, R 417, note; Hallett «. HalleU,2 
Paige, R. 20, 21. In Morse v. Sadler, 1 Cox, R. 352, the Master of the 
Rolls took a distinction between the case of a legacy payable out of per- 
sonal estate and that of a legacy chargeable on real estate. The Bill in 
that case was filed by one legatee on behalf of himself and all the other 
legatees, without making the others parties. On that occasion he said : 
'* That it was an established rule, that legatees out of personal estate 
only need not be parties ; but every person claiming an interest out of 
real estate must be befqre the Court.'* And he directed the cause to 
stand over to add the other legatees, as parties. It is not very clear, upon 
what precise ground this distinction proceeds. It may perhaps be for the 
reason suggested by Lord Hardwicke in Peacock v. Monk, 1 Ves. 181, 



132 EQUITY PLEADINGS. [CH. IV. 

Indeed, if it appears from the face of the Bill, that 
there will be a deficiency in the fund, and that there 
are other persons, who are interested in it, as creditors, 
or as legatees, or otherwise, it seems proper, that all the 
persons in interest should either be made direct parties, 
or that the Bill should be filed on behalf of all of them. 
And, at all events, die Court will take care of their in- 
terests by permitting them to come in and assert thehr 
claims before the Master by its interlocutory decree.* 
§ 105. Upon similar grounds, where a distribution 
or application of the personal estate of a deceased 
person is to be made among his next of kin, or among 
persons claiming under a general description, as, for 
example, among the relations of a testator or other 
person, where it may be uncertain, who are all the 
persons answering that description, or the circumstan- 
ces will make it ^tremely inconvenient, a Bill will 
be allowed to be filed by one claimant on behalf of 
himself and all the other persons equally entitled.* 
Such a Bill is maintainable, not only upon the ground 
of the supposed uncertainty of the persons, answering 
the description ; but also, where they may be known, 
and yet they are exceedingly numerous.^ 

1 Ante, § 100, note; Halletfv. Hallett, 2 Paige, R. 19, 20 ; Egberts ». 
Wood, 3 Paige, R. 519, 620; Mitf. Eq. PI. by Jeremy, 178. 

3 Mitf. Eq. PI. 169 ; Id. 167, 168 ; Bennett v. Honeywood, Ambler, 
R. 709, 710 ; Montagu v. Nucella, 1 Russ. R. 173 ; 1 Mont. Eq. PI. 
62, 63 ; Post, ^ 207, b. As to parties entitled as a class, as, for example, 
as residuary legatees or distrijiutees, when and under what circumstances 
all must be made parties, and when a few may sue in behalf of all, see 
Caldecott ». Caldecott, 1 Craig & Phill. R. 183, 184 ; Harvey r. Harrey, 
4 Beavan, R. 215, 220, 221 ; Post, § 207-207, b, 

3 Post, § 207, b ; Hallett v, Hallett, 2 Paige, R. 19 -21 ; Ante, § 89, 
note ; Cockburn v. Thompson, 16 Ves. 328, 329 ; Manning v, Thesiger, 
1 Sim. & Stu. 106 ; Cranboume v. Crispe, Cas. Temp. Finch, 106. In 
Manning v. Thesiger, 1 Sim. & Stu. 106, where the plaintifis sued on 
behalf of themselves and the other legatees and appointees under a will 
to have the fund transferred to the Court of Chancery, an objection was 



134 EQUITY PLEADINGS. [CH. IV. 

^ 107. The second class of cases, constitutmg an 
exception to the general rule, and already alluded to, is, 

ters, where creditore and next of kin are most likely to be found, calling 
upon such creditors and next of kin to come in and make their claims 
before the Master, within a reasonable time stated ; and when that time 
is expired, it is considered, that the best possible means having been taken 
to ascertain the parties really entitled, the administrator may reasonably 
proceed to distribute the estate amongst those, who have, before the Mas- 
ter, established an apparent title. Such proceedings having been taken, 
the Court will protect the administrator against any future claim. But it 
is obvious, that the notice given by advertisements may, and must, in 
many cases, not reach the parties really entitled. They may be abroad, 
and in a different part of the kingdom from that where the advertise- 
ments are published, or, from a multitude of circumstances, they may not 
see or hear of the advertisements, and it would be the height of injustice, 
that the proceedings of the Court, wisely adopted with a view to general 
convenience, should have the absolute effect of conclusively trsn^rring 
the property of the true owner to one, who has no right to it. It is for 
this reason, that if a party, who has not gone in before the Master, applies 
to the Court after the Master has reported the claimants, who have estab- 
lished before him an apparent title, and makes out, that he has not bees 
guilty of wilful default in not claiming before the Master, the Court wiU 
refer it to the Master, to inquire into his claim, and if it be satis&ctorily 
proved, will, in the administration of the estate, give him the same benefit 
of his title, as if he had originally claimed before the Master. This is 
every day's practice with respect to creditors. For the same reason, if a 
creditor does not happen to discover the proceedings in the Court, until 
after the distribution has been actually made by the order of the Court 
amongst the parties, having, by the Master's report, an apparent title, 
although the Court will protect the administrator, who has acted under 
the orders of the Court ; yet, upon a Bill filed by this creditor, against the 
parties, to whom the property has been distributed, the Court wiU, upon 
proof of no wilful default on the part of such creditor, and no want of 
reasonable diligence on his part, compel the parties defendants to restore 
to the creditor, that which of right belongs to him. For this principle, I 
need only refer to the case of GiUespie v. Alexander, before Lord Eldoo, 
which has been introduced in the argument. There, the estate had been 
apportioned, under the order of the Court, amongst the legatees, and ac- 
tually paid to them ; except that one legatee, being an* infant, his propof- 
tion could not be paid to him, but was carried to his account in the soii. 
After this distribution by the order of the Court, a creditor, who had not 
claimed before the Master, established his title ; and Lord Lyndhnrst, then 
Master of the Rolls, acting upon the principle, which I have stated, direct- 
ed payment of the creditor's demand out of the fund in Court, which had 
been carried to the account of the in&nt. Lord Eldon considered, most 



136 EQUITY ^PLEADINGS. [CH. 17. 

by some of the parties on behalf of themselves and all 
the others, taking care, that there shall be a due repre- 
sentation of all substantial interests before the CourL^ 
And such a Bill must be brought on behalf of all the 
parties in interest ; for if it be brought for the plain- 
tiffs alone, it will not be sustained by the Court for 
the want of proper parties.^ 

§ 108. This doctrine may be illustated by adverting 
to a case, which has occurred in judgment. A Bill 
was brought by the treasurer and managers of certain 
works, called the Temple Mills Brass Works, on be- 
half of themselves, and all other proprietors and par- 
ties in the first undertaking, except the defendants, 
who were the late treasurers and managers (about thir- 
teen in number), for an account for several misman- 
agements, misapplications, and embezzlements of the 
partnership funds. The partnership consisted origi- 
nally of eighteen shares, and these were afterwards 
divided into eight hundred. The defendants demurred, 
because the rest of the proprietors were not made par- 
ties ; and the demurrer was overruled upon the ground, 
first, that the Bill was on behalf of all other proprie- 
tors, except the defendants, and so all of them were, 
in efTect, parties ; and secondly, that it would be im- 
practicable to make them all parties by name, and 
there would be continual abatements by death, or 
otherwise, and so no coming at justice, if all were to 
be made parties.' 

§ 109. The like doctrine has been applied to a case, 



1 Cooper, Eq. PI. 40 ; Chancey v. May, Prec. Ch. 692 ; Lloyd v, Loar- 
ing, 6 Ves. 773; West v. Randall, 2 Mason, R. 194-196; Baldwin 9, 
Lawrence, 2 Sim. & Stu. R. 18; Hickens v. Congreve, 4 Russ. R. 562, 
576, 577. 

2 Baldwin v. Lawrence, 2 Sim. & Stu. 18. 

3 Chancey v. May, Prec. Ch. 592. 



-J 



Cll. IT.] PARTIES TO BILLS. 137 

where a Bill was brought by some shareholders in a 
joint stock com|)any (the stock of which was divided 
into six thousand shares), on behalf of all the share- 
holders, to compel the directors of the company to re- 
fund moneys impro])erly withdrawn by them from the 
stock of the com])any, and applied to their own use. 
L*|)on the objection l)cing taken of the want of proper 
parties, the Court overruled it, ufx)!! the ground, that 
Justice would be unattainable, if all the shareholders 
were required to be made ])arties to the suit ; and that 
a separate Bill by each shareholder, to recover his pro- 
IKirtion of the money, would produce enormous incon- 
venience and multiplied litigation ; and that all the 
shareholders had one common right and one common 
interest to be subserved by the suit.^ 

^ 110. The like doctrine has been applic^d to a case, 
where there was an Association of Widows, contribut- 
ing to a fund to pay them annuities. The fund having 
proved insufBcient, application was made to the Court 
by Bill, by some of the widows, on behalf of them- 
selves and all others, against tlui directors, to compel 
a specific performance of the original articles of sub- 
scription, they having reduced the annuities. One of 
the difficulties was, that all the ])ersons interested wen^ 
not before the Court by name ; for every subscril)er, 
who had not been a memlx^T long enough to l)ecome 
an annuitant, and the representatives of those, who 
were dead, had an interest to state their title in, or 
to recover, the money. The Court sustained tlu^ 
Bill, upon the ground, that it virtually brought tlm 
parties before the Court, as far as was practicable! 
and convenient; and, that it was liettcr to go as 



I Hickciib V. roiiffrcvu, 4 Ruhb. R. 5<''», ^V*. 
CQ. Pl^ 18 



138 EQUITY PLEADINGS. [CH. IV. 

far as possible towards justice, than to deny it alto- 
gether.^ 

^111. The like doctrine has been applied to cases 
of voluntary associations, which although not corpora- 
tions, are yet recognized by law ; as, for example, that 
of Mutual Assurance Companies in England, where 
any number of persons are permitted to associate for 
the insurance of each other, all in effect participating 
as in a partnership. In such a case, it is evident, 
that if an occasion should arise to resort to Equity for 
an account, as it would be, if not impossible, almost 
impracticable, to bring all persons interested as parties 
before the Court, the suit must be against some, being 
proprietors and accountable parties, and instituted by 
others on behalf of all.' 

^112. Upon similar grounds, where an act of Par- 
liament authorized a rate, to be assessed by commis- 
sioners of a fund upon the inhabitants of a town, in 
aid of the fund, for charitable purposes, fiome of the 
inhabitants of the town were allowed to file a Bill, on 
behalf of themselves and all the other inhabitants, 
against the commissioners of the fund, alleging a mis- 
application, and that the rate assessed by them was 
unnecessary, and asking, that the coUection of it might 
be restrained ; for they all possessed a common in- 
terest, and it was impracticable to join them all in the 
suit.^ 

§ 113. So, some of the shareholders of a canal have 
been permitted to bring a Bill on behalf of themselves 

^ Buckley v. Cater, cited 17 Yes. 11, 15; and in Cockburn v. Thomp- 
son, 16 Yes. 328, 329; Pearce v. Piper, 17 Yes. 1, embraced the same 
principle. 

3 Cooper, Eq. PI. 40; Cockburn v. Thompson, 16 Yes. 328, 329; 
Lloyd V. Loaring, 6 Yes. 773 ; Benson v. Heathom, 1 Younge & Coll. 
New. R. 326. 

3 Attorney-General v. Heelis, 2 Sim. & Stu. 67. 



CR. IV.] PARTIES TO BILLS. 139 

and all other shareholders, against the commissioners 
of a canal, to set aside an agrecmc^nt made by the com- 
missioners, contrary to the act of Parliament author- 
izing the can<il ; for under such circumstances, all the 
shareholders must be deemed to have a common in- 
terest, to com|M'l obedience to the act of Parliament. 
On that occasion the Court said ; ^^ In order to enable 
a plaintiff to sue on lx*half of himself and all others, 
who stand in the same relation with him to the sub- 
ject of the suit, it must appear, that the relief sought 
liy him is in its nature l)encficial to all those, whom he 
undertakes to represent. The several persons, who 
advanced moneys upon the credit of these tolls, must 
l)e taken to have advanced such moneys in the confi- 
dence, that the |K)wers of management of the tolls, 
which were vested in the commissioners, would l)e 
only exercised according to the directions of the act, 
and a Bill, which has for its object the due exercise 
of those powers, and to avoid a breach of trust, must 
be intended in its nature beneficial to every share- 
holder.'^^ We shall presently sc^e, how essential an 
ingredient this is in cases of numeroiisness of parties.^ 
§ 114. Upon the like grounds, a few of a large 
number of persons (as, for example, parishioners,) have 
been permitted to institute a suit on l)ehalf of them- 
selves, and the rest, for relief against acts done by 
commissioners, appointed under an act of Parliament, 
which were injurious to their common right, although a 
majority of the parishioners approved of those <icts, and 
disapproved of the suit. For, where a matter is neces- 
sarily injurious to the common right, the majority of 



B Gffmjr 9. Chftplin, 2 Sim. & Stu. 2<;7. Sec Mandcvillc v. Rii.'i?H. -J 
Pelen, R. 487. 
• Port, i 130-134. 



140 EQUITY PLEADINGS. [CH. IV. 

the persons interested can neither excuse the wrong, 
nor deprive all other parties of their remedy by suit.^ 

^ 114, a. So pewholders and members of the con- 
gregation, for whose use a chapel was held in trust for 
religious service according to the doctrines and disci- 
pline of the Church of Scotland, have been permitted 
to maintain a suit on behalf of themselves and all others 
of the congregation, except the trustees, who were 
members, and were guilty of a breach of trust, to com- 
pel obedience to the trust, because the object of the 
suit was for the common benefit of all the members of 
the congregation, except the offending trustees; and 
in no other way could redress for the injury complained 
of be obtained.^ 

^ 115. So, where some of the partners in a very 
numerous company (five hundred and more) filed a 
Bill on behalf of themselves and all the other partners, 
to rescind a contract, entered into on behalf of the 
partnership, where it was manifest from the circum- 
stances of the case, that it would be for the benefit of 
all the partners, that the contract should be rescinded, 
it was held by the Court, upon an objection for want 
of parties, that the Bill was maintainable. Upon that 
occasion it was said to be a rule of Courts of Equity, 
that where the parties are so numerous, as to render it 
inconvenient or impracticable, that they should be par- 
ties to the record ; if they all have one common inter- 
est, a few may sue on behalf of themselves and all the 



1 Bromley v. Smith, 1 Sim. R. 8. In Jones v. Garcia del Rio, 1 Turn. 
& Russ. 300, Lord Eldon said : '' The cases, where one party files a 
Bill in behalf of himself and others, are cases, where others have a choice 
between that and nothing. But how can it be managed, where some 
parties are not dissatisfied, and are disposed to abide by the contract t " 
These remarks seem to require qualification. 

2 Milligan v. Mitchill, 3 Mylne & Craig, 72, 84 ; Post, § 143. 



CH. IV.] PARTIES TO BILLS. 141 

oihtT members of the company ; and that the case 
then in judgment fell within this predicament.' 

^ 115, a. So, where a Bill was filed by the trustees 
of a voluntary Assurance Company, the members of 
which were constantly fluctuating, for the purjiose of 
procuring a policy underwritten by the trustees for the 
company to be cancelled on account of fraud, and the 
Bill alleged, that the members of the company were 
very numerous, and their namcKs and places of alxxle 
unknown, and could not be ascertained by the plain- 
tiffs ; it was held, that the meml)ers need not be made 
parties, but the trustees alone might maintain the Bill, 
as the cancellation of the ])olicy was for the common 
benefit of all.^ 

§ 1 15, b. So, where a Bill was filed by a member 
of a club, which had lieen dissolved, on behalf of him- 
self and all other members at the time of the dissolution, 
seeking to recover from two of the members of the 
committee of the club funds, which they were allei;!:c(l 
to have misappropriated ; the Bill allef2[ed, that a por- 
tion of the funds was p^iyable to the plaintiff as trustee 
under a certain deed, and the rest to Messrs. If., the 
bankers of the club, and in their hands to Ijc subject 
to the control of the committee of the club ; and tlu; 
Bill contained allet^ations, showing that the membiTs 
oTtlic club were alone interested in the funds; and the 



* Small r. Atwimd, l Youn^"', H. 107, IOh. Thf nlijirrticm and tin: 
aiwwrr lo it, with a n'Tiuw uf lUv. {irinriial raws, witj^ vrry i.'!:ilM»r:iirly 
rauklercd by thn bar am) Un* Court (»n thia nrrnsioii. Ijord liVnilliurst'H 
jndfiDCBl ia very poinlrd and full on tlir «nlij«rct. Sit aU(» Uird Hron^'li- 
im'a judgmeiit in Waihurn r. In^ltliy, 1 Mylnt* A: K. *f>, 77 : an<l tlii: 
jadgmeat of Lord (*ottrnliain in Mam v. Mnlnrhy, 1 Mylnr ^ ('rni;r, 
fta0, ud ID Taylor V. Salmon, 4 Mylm* & (*ni^, 1 II. an<i in Wallworth r. 
Holt, 4 Mylne & Craip, tlio, ri35-«i1i) ; Hcnsoii v. llcathorn, I Yoiin^c 
* Coll. New R. 320 : Post, ^ 115. 130- 133. 

* Fenn v. Craig, 3 Youngv & Cull. 21U. Sec PoKt, $ 117-150. *Jin. 



142 EQUITY PLEADINGS. [CH. IV. 

Bill prayed an account, and that the first mentioned 
portion of the funds might be paid to the plaintiff, or 
otherwise as the Court should direct ; and the rest to 
Messrs. H., or othenvise as the Court should direct ; 
it was held, on demurrer for want of parties, that none 
of the other members of the committee or club were 
necessary parties."^ 



1 On this occasion Lord Langdale is reported to have said : " In the 
present case, if I correctly collect the sum of it, it is this : It is alleged 
that the two defendants, Hastings and Emly, have possessed themaelTee 
of property belonging to this club, which I must consider as a partner- 
ship ; that one of the sums of money which they have is subject to a par- 
ticular trust, — furniture money ; the other is general assets of the part- 
nership ; that they have possessed themselves of these sums of money, 
and refuse to account for them. The Bill desires to recover these sums 
not for the purpose of distribution for the purposes of this partnership by 
the Court and by means of the Bill, but for the purpose of bringing them 
within the control of the governing body of the partnership) in order that 
they may be applied under that control according to the rights .of the 
parties. That seems to me to be the nature of the Bill. How can that 
be done 1 The plaintiff and all the others except these two, must have 
an interest in having the money, which the demurrer admits to be in the 
possession of the defendants, brought within the control of the club, — 
that is a common interest. How this money, when it is brought within 
the control of the club, ought to be applied, is another question ; to say 
that we can recover it and place it within the control of the club, leaving 
it there subject to litigation, is saying what is asked to be done in this 
case, and is no more than was asked to be done in that other case of 
Walworth v. Holt. Then, if it is for the common benefit of all, except 
those who are here defendants, that this should be recovered, why should 
it not be done? It is said, this is a case of dissolution. Very true, it is 
a case of dissolution, and that shows that there ought to be a winding up 
and a final settlement. But how is it with a partnership aAer a dissolu- 
tion, and before the affairs of the partnership are wound up? The natural 
connection between the partners is not dissolved with the dissolution of 
the partnership, because it must continue for the purpose of collecting the 
assets and winding up the partnership ; till the matter is closed there is a 
quasi partnership, — a mutual interest between the partners. One of the 
things required for the winding up of the partnership is, that the assets 
should be collected. When it is desired to collect the assets, it may ap- 
pear that one individual has got assets which he keeps in his possession 
adversely to all the rest, which it is the common interest to collect, and 
which, being collected, ought to be applied regularly towards the winding 



144 , EQUITY PLEADINGS. [CH. IV. 

§ 117. Upon similar grounds, where a joint stock 
company, created under an act of Parliament, were 
sued for a specific performance of an agreement for a 
lease, entered into by the vendors of certain real es- 
tate, which was sold to them pendente lite^ and the 
treasurer and directors only were made parties, the 
Court overruled the objection, that all the proprietors 
were not made parties. On that occasion the Court, 
after examining the leading authorities, added the fol- 
lowing expressive language : " There is a current of 
authority adopting more or less a general principle of 
exception, by which the rule, that all persons inter- 
ested must be parties, yields, when justice requires it 
in the instance, either of plaintiffs, or of defendants. 
The rigid enforcement of the rule would lead to per- 
petual abatements. This, therefore, cannot be re- 
garded as a new point, or as creating a difficulty. It 
is quite clear, that the present suit has sufficient par- 
ties, and that the defendants may be considered as 
representing the company."^ 

§ 118. So, where the city of London had leased 
certain water pipes and privileges to a lessee for a 
specified rent ; and the lessee had afterwards assigned 
it ; and the assignees had subdivided the interest into 
nine hundred shares ; and a Bill was brought to en- 

cellor Eldon said, that *' Where a legal body acts by committees, it is 
enough to consider the contract made with those, who think proper to 
undertake, looking to the body for which they undertake for indemnity ; 
and the plaintilfs at law could not be nonsuuited, nor could they defend 
an action against them on that ground." 

1 Meux V, Maltby, 2 Swanst. R. 284. The Master of the Rolls cited 
and commented upon all the leading authorities on this occasion, as did 
Lord Eldon in Cockburn v. Thompson, 16 Ves. 328, 329. It was said 
by the Vice-Chancellor in Lanchester v. Thompson, 5 Madd. R. 12, 13, 
that where it is attempted to proceed against two or three individuals, as 
representing a numerous class, it must be alleged in the Bill, that the suit 
is brought against them in that character. 



CH. IV.] PARTIES TO BILLS. 145 

force the p«iymcnt of the rent in arrear against tlio 
assignees and some of the shareholders ; it was held, 
that all the shareholders need not l)c made |)arties, 
since it was obviously impracticable to bring them all 
before the Court* So, where upon the creation of a 
water compny, the Crown had received a moiety of 
the interest, and afterwards that moiety was subdivid- 
ed into a large number of shares (over one hundred) ; 
on a suit brought by an annuitant against the compa- 
ny, it was insisted, that all the shareholders ought to 
have been made i)arties. But the Court overruled the 
objection, saying, that it was not necessary, that all 
the proprietors of the King's share, as well as of the 
company's share (whose share had also been subdivid- 
ed) should be made parties; for those parties were 
represented before the Court ; and no objection could 
arise on this account ; for it was impracticable to com- 
ply with the general rule.^ 

§ 1 19. Upon similar grounds, where the stockhold- 
ers of an incorporated bank, on its dissolution, had 
divided the capital stock among themselves, leaving a 
defeiency to pay their outstanding Ijank bills, it was 
held, that a bill holder might maintain a suit against 
some of the stockholders to subject the funds in their 
bands to contribution pro rata to pay the bills in 
his hands without making all the other stockholders 
parties.' 

^ 120. The third class of cases already alluded to 
as constituting an exception to the general rule, as to 
parties, is, where the parties are very numerous, and 



I City of London v. KichmomJ, 2 Vcni. 42! ; S. C. Prnc. C'h. 150; 
S. C. 1 Bio. Pari. U. by Toniliiia, 510. See also Vcnion v. Ulaik- 
crlj, 9 Atk. 144, 145. 

* Adair v. New River Company, 11 Ves. 443, 444. 

S Wood V. Dummer, 3 Mason, R. 315-319, and cases there cited. 

SQ. PL. 19 



146 EQUITT PLEADINGS. [CH. IF. 

although they have, or maj have, separate and distinct 
interests, yet it is impracticable to bring them all be- 
fore the Court, and, on this account, they are dispens- 
ed with.^ In this class of cases, there is usually a 
privity of interest between the parties ; but such a 
privity is not the foundation of the exception. On 
the contrary, it is sustained in some cases, where no 
such privity exists.^ However, in all of them there 
always exists a common interest, or a common right, 
which the Bill seeks to establish and enforce, or a gen- 
eral claim or privilege, which it seeks to establish, or 
to narrow, or take away. It is obvious, that, under 
such circumstances, the interests of persons, not actual 
parties to the suit, may be in some measure afifected 
by the decree ; but the suit is nevertheless permitted 
to proceed without them, in order to prevent a total 
failure of justice.^ Indeed, in most, if not in all, cases 
of this sort, the decree obtained upon such a Bill wiU 
ordinarily be held binding upon all other persons stand- 
ing in the same predicament, the Court taking care, 
that sufficient persons are before it, honesdy, fairly, and 
fully to ascertain and try the general right in contest* 
^ 121. Thus, for example. Bills have been per- 
mitted to be brought by the lord of a manor against 
some of the tenants, or, vice versd, by some of the 
tenants on behalf of themselves and all the other ten- 

1 I Mont. Eq. PI. 57, 58 ; Post, § 285. 

2 Mayor of York v. Pilkington, 1 Atk. 289; City of London r. 
Perkins, 4 Bro. Pari. Cas. 158 ; S. C. 3 Bro. Pari, by Tomlins, 60S. 

3 Mitf. Eq. PI. by Jeremy, 170; Cooper, Eq. PI. 40, 41 ; We»t ». 
Randall, 2 Mason, R. 193-195 ; Cockburn v. Thompson, 16 Yes. 328; 
Long r. Younge, 2 Sim. R. 369 ; Mayor of York v. Pilkington, 1 Atk. 
282 ; Post, § 285. 

4 Adair r. New River Company, 11 Yes. 429, 444; Meux v. Malt- 
by, 2 Swanst. 283, 284; Weale r. West Midd. Water Works Co., 
1 Jac. & Walk. 369; Duke of Norfolk v. Myers, 4 Madd. 113, 114; 
Baker «. Rogen, Sel. Cas. in Ch. 74. 



148 EQUITY PLEADINGS. [CH. IF. 

^ 122. Upon similar grounds, although, by the gen- 
eral rule, all the persons, whose estates are affected 
with a rent charge, should be made parties to a suit 
brought to enforce it ; yet, if some of them are un- 
known, or if they are very numerous, so that the rule 
becomes impracticable, or exceedingly inconvenienti 
the Court will dispense with it ; ^ and the parties be- 
fore the Court will be left to seek contribution from 
the other persons in a new Bill for contribution.' 
Here, also, there is a privity between all the terre-ten- 
ants as to the rent charge, although their estates are, 
or may be, otherwise, several and distinct. 

§ 123. So, where there is one general right to de- 
mand service from the individuals of a large district, as 
for example, a right to demand, that all the individu- 
uals of a large district should grind all the com for their 
subsistence at a particular mill; in such a case, the 

and several interests only, and no common right or claim. See Jones «. 
Grarcia del Rio, I Turn. & Russ. 299-301. In Long v. Younge, 3 Sim. 
R. 369, the Vice-Chancellor used the following language : — ^" Now the 
rules with respect to parties are exceedingly plain and intelligible to those, 
who will consider the principle, on which they are founded. The general 
rule is, that all parties interested in the subject of the suit, shall be parties 
to the record. Then there are certain exceptions. And those excep- 
tions, as far as this particular point is concerned, may be divided into two 
parts. One exception is, where several persons, having distinct rights 
against a common fund, or against one individual, are allowed, a few of 
them, on behalf of themselves and the rest, to file a Bill for the purpose of 
prosecuting their mutual rights against the common fund, or the individual 
liable to their demand. The other exception is, where a person may have 
a right against several individuals, who are liable to common obligations. 
In that case, a Bill is allowed to be filed by a single plaintiff against 
some, but not all, of those persons, who are bound to make good the 
plaintiff's demand. This is the general division of the exceptions to the 
general rule." See also Hickens v, Congreve, 4 Russ. R. 562, 576, 
677. 

1 Attorney-General v, Wyburgh, I P. Will. 599; S. C. 2Eq. Abridg. 
167; Attorney-General v. Jackson, 11 Ves. 367; Attorney-General r. 
Shelly, I Salk. R. 162; Cooper, Eq. PI. 41. 

8 Attorney-General v. New River Company, 11 Ves. 444, 446. 



i 



150 EQUITY PLEADINGS. [CH. IF* 

objection, that all the subjects of the realm might be 
concerned in the right. In such a case, a great num- 
ber of actions might otherwise be brought, and almost 
interminable litigation would ensue; and, therefore, 
the Court suffered the Bill to proceed, although the 
defendants might make distinct defences, and although 
there was no privity between them and the city.^ 

^ 125. So, where a Bill was brought to quiet the 
plaintiflPs right of fishery in the River Ouse, of which 
the plaintiffs claimed the sole fishery for a large tract 
against the defendants, who (as the Bill suggested) 
claimed several rights, either as lords of manors, or as 
occupiers of the adjacent lands, and also for a dis- 
covery and account of the fish, which they had taken ; 
an objection was taken, that there was no privity be- 
tween the defendants, but that the Bill treated them 
as distinct trespassers, and that there was no general 
right to be established against them. The Court, 
however, sustained the Bill; for there was a general 
right of a sole fishery asserted by the plaintiffs against 
all the defendants ; and the defendants were not pre- 
cluded from setting up distinct exemptions and dis- 
tinct rights in their defence.^ The benefit to be ob- 
tained by such a Bill, under such circumstances, is, 
that it may furnish a ground to quiet the general right, 
not only as to the persons before the Court, but as to 
all others in the same predicament.^ 



1 City of London v. Perkins, 4 Bro. Pari. Cas. 158 (Tomlin's Edit. 3 
Brown, P. C. 602); Mayor of York v. Pilkington, 1 Atk. 283, 284. 

« Mayor of York v. Pilkington, 1 Atk. 282, 284 ; Tenham r. Herbert, 
2 Atk. 484 ; Mitf. Eq. PI. by Jeremy, 145, 146. 

3 Lord Hardwicke (ip 1 Atk. R. 284) on that occasion said ; *' Here ars 
two causes of demurrer, one assigned originally, and one now at tbe bar, 
that this is not a proper Bill, as it claims a sole right of fishery against 
five lords of manors, because they ought to be considered as distinct tres- 
passers, and that there is no general right, that can be established against 



.kJ 



CH. IV.] PARTIES TO BILLS. 151 

^ 126. In all these classes of cases, it is apparent, 
that all the parties stand, or arc $tip|)osed to stand, in 

tbem, nor any privity between the plaintifls and them. In this respect 
it doei differ from cases, that have been cited, of lurds and tenants, par- 
aoDS and parishioners, where there is one general right, and a privity be- 
tween the parties. But there are eases, where Bills of peace have been 
bnnight, though there has been a general right claimed by the plaintifT, 
and yet no privity between the plaintiffs and defendants, nor any general 
right on the part of the defendants, and where many more nii>^ht bo 
coneemed than those brought before the Court. Such are Bills for duties, 
as in the case of the C-ity of Ijondon v, Perkins, in the House of Lords, 
where the city o( Jjundun hruuglit only a few i^ensons before the Court, 
who dealt in those things, whereof the duty was claimed, to estahli.sh a 
riirht to it ; and yet all the king's subjects may be concerned in this right. 
liut because a great number of actions may be brought, the (>ourt sutlers 
such Bills, though the defendants might make distinct defences, and 
though there was no privity between them and the city. I think there- 
fore this Bill is proper ; and the more so, because it appears, there are no 
other perwins, but the defendants, who set up any claim against \\iv plain- 
tifls; and it is no objection, that they have separate defeuecH. Hut the 
question is, whether the plaintiff:* have a general right to the soh^ fishery, 
which extends to all the defendants ; for notwithstanding the general 
right is tried and rstablisheil, the defendants may take advantage of their 
several exemptions, or distinct rights.** 

I^ird RIdon, in Weahj v. Middles»*»x Water Works Company, 1 Jar. 
it Walk. 3CU, alluding to this rase, said : ** That [eaiH*] of the Mayor 
and Corporation of York and IMkiii^tou wiin this. Tln^y conceived them- 
selves to be entitled to an exclusive fislirrv in the Kiver Oust*. There 
were many individuals, who conceived they had certain rights in the 
Mne hver; and i\w Corp<iration filod their Hill to establish their exclu- 
sive right to it. It was at first considfrrcd, by no Icsh a man lli:in l«(ird 
Hardvickc, that the Hill would not dd. Hut« on further roMMdmiuMi, he 
was of opinion, th.'it it wsis a proper Hill to i>stabliNh the right; for \%tierc 
the plaintifls stated themselves to Imve the exclusive riuht. it sijriiifuHi 
nothing what particular rights nii^'ht be set up auMin^t them; hi'e:tu>e. if 
they prevailed, the rightH of no i it her persons muld sftand. And it has 
been long setthrd, that if any {ntsou has a common right atrainid a great 
many of the king's subjects, inasmuch as he cannot contend with all the 
kmg*8 subjects, a Couri of Ki]iiiiy will pernnl hini t(» file a Hill against 
some of them ; taking; can* lo bring so many perMons before the (*<Mirt, 
that their interests 9 hall Ir? such as t«i h-ad to a fair and honest support 
of the public interest ; — and when a ileertM* has U'en tifilaiiied. then. v\illi 
reapect to the indiviiluals, uhone inlere>t i> so fully and tionestly e.siali- 
liabed, the 1-uuri, on the footing of the former decree, will carry the bene- 
fit of it into execution, against other individuals, who were not parties.** 



162 EQUITY PLEADINGS. [CH. IV. 

the same situation, and have one common right, or one 
common interest, the operation and protection of which 
will be for the common benefit of all, and cannot be 
to the injury of any. It is under such circumstances, 
and with such objects, that the Bill is permitted to be 
filed by a few, on behalf of themselves and all others, 
or against a few, and yet to bind the rights and in- 
terests of the others.^ But, if the Bill is filed by the 
plaintiffs, on behalf of themselves only, and not on be- 
half of all the other persons in interest, the Bill would 
be unmaintainable, and be held bad on demurrer.' 

^ 127. The nature of the decree, also, which is 
asked and given, may sometimes fiimish a ground to 
dispense with parties, where they are very numerous;' 
as, for example, where the Bill seeks only for a con- 
tribution pro raid towards a common charge, the ex- 
tent of the liability being clearly ascertainable, and ad- 
mitting, and requiring a several apportionment. Thus, 
where a man proposed to raise a bank, and to procure 
an act of Parliaiixent to establish and settle it ; about 
fifty others joined with him, and were at equal ex- 
penses. The project being likely to take effect, two 
hundred af^d fifty more subscribed to raise a fund ; but 
in effecting the project about £6000 were lost, and 



1 Hickens v. Congreve, 4 Russ. R. 662, 676, 677 ; Long r. Yonnge, 
2 Sim. R. 369; Ante, § 107- 110; Post, § 132, 133, note, 134 a. The 
propriety of the rule of dispensing with parties interested, where they 
are numerous and the suit is for an object common to them all, and 
bringing the Bill in behalf of all, is fully recognized in Taylor v. Salmon, 
4 Mylne & Craig, 142 ; Benson v, Heathom, 1 Younge & Coll. New 
R. 326. 

9 Douglas V. Horsfall, 2 Sim. & Stu. R. 184. See Mandeville «. Riggs, 
2 Peters, R. 487 ; Ante, § 99. 

3 Mitf. Eq. PI. by Jeremy, 179, 180. See Wigram on DisooYeiy, 76, 
1st edit. ; Id. p. 169, 170, 2d edit. ; Howes v. Wadham, Ridg. Cat. 
Hard. 199, 200; Calyert on Parties, eh. 1, § 1, p. 3-12; Post, § 128, 
129, 139, 214, 228. 



A 



CH. IT.] PARTIES TO BILLS. 153 

SO it dropped. Then liie persons, wiio had paid the 
£6000 out of pocket, exhibited their Bill against six- 
teen of tlie two hundred and fifty subscribers, to bear 
their pro{)ortions of tlu; loss. It was objected, that 
the Bill ought to abate for want of piirties. But the 
objection was overruled ; and it was held, that, as the 
plaintiflfs only prayed, that the defendants might bear 
their proportion of the loss, which would appear be- 
fore the Master, as well as if all the two hundred and 
fifty subscril)ers were lx;fore the Court, there could be 
no prejudice to the defendants; and if there should 
happen to be any disproiK)rtion in the accounts, the 
party aggrieved might have his remedy by Bill.^ 

§ 128. The same doctrine was acted u{X)n in the 
case of an incorporated bank, where the stockholders 
had divided the capital stock u|)on the eve of the dis- 
adutioD of the corix)ration under its charter, leaving 
funds for the payment of the outstanding bank-bills 
and other debts, which proved inadequate to the dis- 
cbarge of them. Some holders of the bills of the 
bank sued a part only of the stockholders (the capital 
stock being divided into two thousand shares), to re- 
cover from them the amount of the iKink-bilb; and uix)n 
the oljjection, that all the stoi!kholders were not made 
parties, the Court, admitting, that it was im|X)ssible, 
that they could all be made parties, sustained the Bill, 
and decreed a pro raid contribution by the defendants 
towards the piiyment of the iKink-bills, in the projior- 
tion that the stock held by the defendants l)ore to the 
whole number of stockholders.^ 



1 Anon. 2 Rq. Abriilfr* l^<>t pi- 7- 

* Wood «. Dumnicr, &r. :i Mu>m>ii, 30M, 317-310, 3*J1. 30-2. In lliiri 
CMS it did not appear, that ihi: othtT BtticklioMcrs wtTt* mit nf thi' juriMiu-- 
lion of the Court, or wi-re iiisMilvvnt ; nor did it apiicar, what other WiWh 
were outstanding. The Court, referring to theoe circunutaoces, aaidi that 

CQ. PL. 20 



154 EQUITY PLEADINGS. [CH. IV. 

^ 129. It is upon similar grounds, that the decision 
is to be explained in the case of a mine owned by a 
partnership, engaged in a mining adventure, which 
mine had been sold by some of the partners (who 
were the legal owners of the mine, and joint adven- 
turers), with the consent of all but one partner, to a 
joint stock company, consisting of numerous proprie- 
tors and shares, for which payment had been made to 
them, partly in money, and partly in shares of the 
joint company stock. The partner, who had not con- 
sented to the sale, and who claimed a definite interest 
in the mine and mining adventure, brought a Bill 
against the partners, who had sold the mine, praying, 
that they might, at his election, either account to the 
plaintiff for his proportion of the profits derived fix)m 
the sale, or that out of the shares of the stock of the 
joint company in their hands held on their own account 
they might transfer to him so many shares as would 
be equivalent to his interest. A demurrer was put in 
for the want of proper parties, the other partners and 
the proprietors of the joint stock company not having 
been made parties. But the Court held the objection 
invalid ; for the proprietors at large had no interest in 
the controversy ; and it appeared by the Bill, that the 
other partners had been settled with ; and consequently 
no other persons, but the plaintiff and the defendants, 
had any interest in the suit, as the sale and settlement 
were not sought to be disturbed by it,* and the plaintiff 
sought relief only against the funds or shares belong- 



it would not take more than the proportion from the defendants, hecaase 
it might thereby deprive other bill holders of the funds, out of which 
alone they could obtain pa3rment. The Bill was not so framed, as to 
bp on behalf of all other bill holders. Ante, § 117. See also Selyard v, 
Harris's Ex'rs, 1 Eq. Abridg. 74. Post, § 214, and note. 
* Mare r. Malachy, 1 Mylne & Craig, 659. 



CH. IT.] PARTIES TO BILLS. 155 

ing to the defendants and in their hands, to the extent 
of his claim and title and interest in the concern. 

^ 129, a. Another case may illustrate the same 
doctrine. Suppose the ordinary case of a joint stock 
company, where the sliares are transferable by deliv- 
ery of the script receipt, and the holder (who has, 
therefore, a right to sell them) should sell them, and 
afterwards should refuse to complete the sale, a Bill 
might well be brought by the purchaser against the 
seller to compel a s|)ecific performance of the contract 
of sale, without making the other shareholders parties ; 
for they have no interest in the object of the Bill or in 
the controversy, the simple question being, who, as 
between buyer and seller, is entitled to the particular 
shares sold.' 

§ 130. But although the numerousness of parties, as 
well as their l)eing unknown, constitutes, or may con- 
stitute, a good ground for dis[)ensing with their being 
made actual parties to a suit in the classes of cases 
before mentioned ; yet (as has l)een already stated) ' 
this exception has not been allowed to operate, with- 
out some qualifications, where the decree must direct- 
ly aflect the interests of the ptTsons not Ix^fore the 
Court, and they have a right and an interest to l)e 
heard before the decree is made.^ A few illustrations 
of these qualifications u|x)n the generality of this ex- 
ception may here Im; properly suggested from adjudged 
cases. 

§ 131. Thus, for example, where a suit was brought 
by a few members of a voluntary society, called the 



' See per liortl (*utu>nhain in Man: v. Malacliy, 1 Mylne & rniiij, iiT-J, 
573; Turner v. Hill, II Sim. U. 1, 11 ; Turiiur v. IKirlaitc. U Sim. U. 
17, SO; Punt, § 135- 135, h. 

* Ante, ^ 77, 9^1, TiO, 12<*i. 

> Ante, § 84, iH ; Pwi, § 133- 131. 



156 EQUITY PLEADINGS. [CH. IV. 

Benevolent Union Society, consisting of sixty-one 
members, on behalf of themselves and all other mem- 
bers for an account and injunction against the six 
defendants, who were trustees and members of the 
society, intrusted with the stock of the society, who 
had, in breach of the articles of the society, sold out a 
part of it, and proceeded to dissolve the society ; and it 
appeared, that by the articles it was a material part of 
the contract, that the society should never be dissolved, 
so long as seven members should support the same ; 
and it further appeared, that all the other members 
(forty-seven in number), except the plaintiffs, had re- 
ceived their shares, and the plaintiffs' shares were in 
Court. It was held, that all the other forty-seven 
members ought to have been made parties, as they had 
a direct interest in the decree to be made upon the 
Bill, seeking, as it did, a replacement of the stock, and 
a continuance of the society.^ In such a case it is 
clear, that the real question was, whether there could 
be a dissolution of the partnership and a division of 
the funds, or not, consistently with the articles ; and 
in that question all the members had an equal interest 
to be heard, and to be protected.^ 

^ 131, a. So where one of thirty-eight proprietors 
of a newspaper was appointed bookseller, and receiv- 
ed the moneys of the concern, it was hi^ld, on a Bill 
brought by twelve of the proprietors on behalf of them- 
selves and all the other proprietors, for an account, 
that the remaining twenty-five proprietors ought to 



^ Beaumont v. Meredith, 3 Ves. & Beam. 180 ; Evans v. Stokes, 1 
Keen, R. 29 ; Mocata v. Ingilby, 14 Law Journ. 145. See Richardson v. 
Hastings, before Lord Langdale, Feb. 22, 1844, The (English) Jurist 
for 16th March, 1844, p. 207, 208. 

« See also Wheeler «. Van Wart, 9 Sim. 2, 193. 



CH. IT.] PARTIES TO BILLS. 157 

be made parties by name, since it did not appear that 
the suit was necessarily for their benefit.^ 

^ 132. IJiKin simihir grounds it has been hehi, that a 
shareholder in a joint stock company cannot file a Bill 
on behalf of himself and all other shareholders for a 
dissolution of the concern ; but they must all be made 
actual parties to the suit, however numerous, and how- 
ever impracticable it may be under such circumstances 
to proceed to a decree ; u])on the ground that it is by 
no means a general principle in Equity, that all cases 
within the same mischief, as to parties, are to be held 
rclievable simply on account of their numerousness, if 
the parties not before the Court have a substantial in- 
terest in the very question of right, on w hich the decree 
must hinge.' But this doctrine seems open to great 



1 Biinbridpe v. Hurton, 3 Beavan, R. 539, 510. Sec also Evans v. 
Blokes, 1 Keen, R. 2iK 

' See Van Sandau o. Mnorr, 1 Ru8s. R. 441, 4G5 ; Blain v. Agar, 1 
Sim. R. 37 ; S. C. 2 Sim. 28!) ; Umfi v. Younf;e, 2 Sim. 3(i9 ; Wheeler 
9. Van Wart, Sim. R. 193. See also Small v. Atwocid, 1 Younge, R. 
407, 456,459; Erans v. Stokes, I Keen, R. 24 ; Ante, ^ 94, 107, 108 ; 
Mile V. Malachy, I Mylne & Oaig. 559 ; Taylor v. Salmon, 4 Mylne & 
Craig, 141. There is not a little difficulty in this whole doctrine. Why, 
in euet of this sort, cunfrsHedly otherwise irremediable, a Bill might nut 
be OMinUined by a few in behalf of all the company, having tin; same 
iu ie f e t , who do not choose to come in and object, does not seem ho clear 
■pon general reasoning, as Mime learned judges seem Ui have thought it 
to be. Admitting, that all have a common interest, to lie affected by the 
decree ; still if ihfy do not rhu«>!4e to appear and n*Hi»t the decr<>e, it is no 
on&ir inference, that they an- rontrnt to ahid<; by it. At all cveiitH, if 
the plmlntifls do make out a Ht-ar cas«? fur a dissolution, it seems uiijunt to 
deprive them of all aid, even though the decree may afTect the intereHis 
of othen. In what resfN'ct d«ies such a ca.w differ in subHtanve from 
thnl of 1 common right claimeil by or against all parishioners, or coni- 
I, or creditors ? If the Court should niainuin the juriwlictiun in a 
of this sort, it might providi; for all absent and opp<wing inU-resiM by 
referring the case to a Master, and allowing thein to come in, and «>bji'et 
before him to further pn>ceedings. 'I'he authorities do not, ho^^evcr, 
■ppenr to give any countenance to this suijgcstion. The arguments and 



158 EQUITY PLEADINGS. [CH. IV. 

doubt and difficulty ; and indeed it tends to make a 
rule, designed to attain the purposes of general justice, 
the instrument of an utter denial of all justice, where 
the interests of all parties are not, or may not be ex- 
actly coincident. It has been accordingly greatly quali- 
fied, if not positively overturned, in the more recent 
authorities.^ 



the opinion of the Court in Long v, Younge, 2 Sim. R. 369, present the 
doctrine in a strong light. 

It appears to me that some passages in the judgment of Lord Lyndhurst 
in Small v. Atwood, 1 Younge, R. 457, 458, show the difficulty of limit- 
ing the exception to cases of a common interest and benefit, and a lurk- 
ing doubt of the propriety of these decisions. His language was : *' It is 
the rule of a Court of Equity, that all persons, who are interested in a 
question which is litigated in a Court of Equity, must, either in the shape 
of plaintiffii or defendants, be brought before the Court. If that rule were 
to apply, in its strictness, to a case of this description, this consequence 
would follow, that justice in such a case as the present would be unat- 
tainable in this Court ; because it is perfectly certain, that if it were ne- 
cessary to put upon the record the names of all the persons, who are 
members of this partnership, or were members at the time when this Bill 
was filed (for they then amounted to very nearly six hundred), it would be 
utterly impossible, that the suit could ever come to its termination, from 
the necessary abatements, which would, from time to time, take place 
from deaths and other causes. This argument, or observation, I admit, is 
not conclusive. I admit that the general rule is, that all persons, who 
are interested in the question, must be parties to a suit instituted in a 
Court of Equity, where that question is the object of the suit. But there 
are certain exceptions to that rule, which were established at a very early 
period, for the purpose of preventing that failure of justice, to which I 
have referred." See also the remarks of Lord Chancellor Brougham in 
Walbum v. Ingilby, 1 Mylne & K. 76, 77, and Hickens v. Congreve, 4 
Russ. R. 574 - 577, and the remarks of Mr. Baron Alderson in Fenn o. 
Craig, 3 Younge & Coll. 223, 234, and of Lord Cottenham in Taylor r. 
Salmon, 4 Mylne & Craig, 141, and in Mare v. Malachy, 1 Mylne & 
Craig, 559, and in Wallworth v. Holt, 4 Mylne & Craig, 619, 635, An- 
te, ^ 76, a, 76, c, 132, which obviously lean in favor of dispensing with 
parties incases of this sort, where there would otherwise be an irremediar 
ble injustice. Ante, § 107-115, 126 ; Post, § 135, a. 

1 Ibid. Mare v. Malachy, 1 Mylne & Craig, 559 ; Taylor r. Sal- 
mon, 4 Mylne & Craig, R. 134. In this case Lord Cottenhan said ; '* I 
have before taken occasion to observe, that I thought it the duty of 



CH. IV.] PARTIES TO BILLS. 159 

§ 133. So, it has been thouf^ht, that, where tliere is 
an assignment by a trust deed, made by a deluor for 

thii Court to adapt its practice and course of proceed in pf as far as possible 
to the existing state of society, and to apply its jurisdiction to all those 
new cases which, from the progress daily making in the affairs of men, 
must continually arise, and not, from too strict an adherence to forms and 
rules established under very different circumstances, decline to administer 
justice, and to enforce rights for which there is no other remedy." In 
Wallworth o. Holt, 4 Mylne & Craig, Gl!), ri34- 640, Lord Cottcnham 
reviewed the whole doctrine and authorities, and said ; *' The caso 
stated by the Bill, which is filed by the plaintiffs on behalf of them- 
■rWesandall other the shareholders and partners of the banking company 
called the Imperial Dank of Kngland, except those who are made de- 
fendaots is shortly this : that they are shareholders, and have paid all 
the calls made, which amount to Mir* per share; that the business of the 
company has been suspiMided since I'^.IU, but that it has not been dissolv- 
ed ; that large debts are due by the company, for which they and the 
other shareholders are liable, and that there are considerable assets in the 
hands of the directors and trustees, though not P({ual to the debts ; that all 
Ihe direclors, except one, have become bankrupts, and have thereby, by 
their regulations, iK'come incapable of acting, and that the trustees refuse 
to set; and that the other defendants are the only sharelmlders who havo 
not paid their calls; and it therefore prays for the assistance of this (*ourt 
to relieve them from this difTicuIty, by causing the assctts of the eumpany 
to be realixed, and the debts to l>e paid : and that for this purpi»se a re- 
ceiver may be appointed, and authortzeil to sue for calls unpaid, and oth- 
er debts due to the company, in the nani«* of l\w rt'gistert^d olFicrr under 
ihe 7 Cieo. IV. c. 46, who is one of the defendants. When it is wiid that 
the Court cannot give relief of this limited kind, it is, I presuni«', meant, 
Ihmt the Bill ought to have prayed a dissolution, and a fuial winding up 
of the nflkirs of the company. How far this Court will interfere t»etween 
paitnera, except in cases of disswdution, has been thesubjert of much dif- 
ference of opinion, u|»on which it is not my purpose t«i say any thinur 
beyond what in neccKKary for the diTiMon of this case : hut there are 
■tronif aathorities for holding that to a Bill praying a dis^ohitiiiii all the 
pnrtnen must bt> parties ; and this Bill allt*ges that they are so numrniUH 
na to make that im[N>ssible. The result, therefore, of these* twn rules 
would be, — the one binding the (-*ourt to withiiold its juristliction except 
■poo bills praying a dissolution, and the other rei|ULhng that all the part- 
men ahould be parties to a Bill praying it, — that the door of this Court 
would be shut in all casirs in which the partners or bhareh«ilders are Uw 
■nmeroua to be made; partifs, whirh in the pn*Hfnt state of th«* t ran sac - 
lions of mankind, would lie an aliMilutf di-uial of justice to a larg«- piirti«iii 
of the subjects of the realm, in hoiii«' of the mimt inifNirtant of ih< ir allairs. 
This result is quite sufficient tu show that such cannot be the law ; fur. 



160 EQUITY PLEADINGS. [CH. IV. 

the benefit of such creditors, as should execute the as- 
signment, if any incumbrancer (not one of such credi- 

as I have said upon other occasions, I think it the duty of this Court to 
adapt its practice and course of proceeding to the existing state of society, 
and not by too strict an adherence to forms and rules, established under dif- 
ferent circumstances, to decline to administer justice, and to enforce righta 
for which there is no other remedy. This has always been the principle of 
this Court, though not at all times sufficiently attended to. It is the ground 
upon which the Court has, in many cases, dispensed with the presence of 
parties who would, according to the general practice, have been necessary 
parties. In Cockburn v. Thompson, Lord Eldon says, ' A general rule, es- 
tablished for the convenient administration of justice, must not be adhered 
to in cases in which, consistently with practical convenience, it is inca- 
pable of application ;' and again, * The difficulty must be overcome upon 
this principle, that it is better to go as far as possible towards justice thaa 
to deny it altogether.' If, therefore, it were necessary to go much further 
than it is, in opposition to some highly sanctioned opinions, in order to 
open the door of justice in this Court to those who cannot obtain it else- 
where, I should not shrink from the responsibility of doing so ; but, in 
this particular case, notwithstanding the opinions to which I have referred, 
it will be found that there is much more of authority in support of the 
equky claimed by this Bill than there is against it. It is true that the 
Bill does not pray for a dissolution, and that it states the compan]^ to 
be still subsisting ; but it does not pray for an account of partnership 
dealings and transactions, for the purpose of obtaining the share of profits 
due to the plaintiffs, which seems to be the case contemplated in the 
opinions to which I have referred ; but its object b to have the common 
assets realized and applied to their legitimate purpose, in order that the 
plain tifis may be relieved from the responsibility to which they are ex- 
posed, and which is contrary to the provisions of their common contract, 
and to every principle of justice. But whether the interest of the plaintifils 
in right of which they sue arises from such responsibility or from any 
other cause cannot be material ; the question being, whether some part- 
ners, having an interest in the application of the partnership property, 
are entitled, on behalf of themselves and the other partners, except the 
defendants, to sue such remaining partners in this Court for that purpose, 
pending the subsistence of the partnership ; and if it shall appear that 
such a suit may be maintained by some partners on behalf of themselves 
and others similarly circumstanced against other persons, whether trustees 
and agents for the company or strangers being possessed of property of 
the company, it may be asked why the same right of suit should not exist 
when the party in possession of such property happens also to be a partner 
or shareholder? In Chancey t;. May, the defendants were partners. In 
the Widows' Case, before Lord Thurlow, cited by Lord Eldon, the Bill 
was on behalf of the plaintiffs and all others in the same interest, and 



rn. IV.] PARTIES TO BILLS. 161 

tors) should seek to enforce against the projiorty cer- 
tain securities held by him, some of which arc prior, 



Boapbt to provide funds for a sulisisUnfr establishment. In Knowlcs t;. 
Iloofrhton, 11th July, 1805, reported in Vcsoy, but more fully in Cnllyor 
on the Law of Partnerehip, the Bill prayed an account of partncrsliip 
monetions, and that the partnership might be established ; and the de- 
erae direeted an account of the brokcraf;c business, and to ascertain what, 
if any thing, was due to the plaintilf in respect thereof; and the Master 
to inquire, whether the partnership between the plaintiff and the do- 
hadatany time, and when, licen dissolved ; showing that the C*oiirt 
did not consider the dissolution of the partnership as a preliminary iieoos- 
■ary before directing the acruunt. In Cuckburn e. Thompson, the Dill 
prayed i diasolation ; but it was lilcd by certain proprietors on behalf of 
tbemeeWea and others, and Lord Eldon overruled the objection that the 
othen were not parties. In Ilichens «. Congrevc, the Bill was on behalf 
of the plaintiff and the other shareholders, against certain shareholders 
who were aleo directors, not praying a dissolution, but seeking only the 
repnyment to the company of certain funds alleged to have been improper- 
ly abnmeled from the partnership property by the defendants ; and Sir 
Anthony Hart overruled a demurrer, and his decision was affirmed by 
Loid LyndhuBt. In Walburn v. Ingilby, the Bill did not pray a dissolu- 
tion of pnrtnerahip, and Lord Brougham, in allowing the demurrer u]>on 
other gronnds, stated that it could not be supported upon the ground of 
It of parties, because a dissolution was not prayed. In Taylor v. Sal> 
t, the enit was by some shareholders, on behalf of themselves and 
othen, against Salmon, also a shareholder, to recover pro|)erty claimed by 
the eompony, which he had appropriated to himself; and the Vico-( 'han- 
eellor deereed f«ir tlie plaintiff, which was affirmed on appeal. The Bill 
did not prey a dissolution, and the company was a sulwistinp and conlinu- 
ia$g pnitnenhip. That case and Hichens v, Congrevc differ from the 
present in this only, that in those cases the partnershi|>8 were flourishing 
and likely to continue, whereas in the present, though not dissolved, it is 
nnnhle toearry on the purposes for which it was formed, an inability to bo 
atihbaled in part to the withholiling that property which this Bill se«'ks 
to reeover. So far this cas»? approximates to those in which the partntT- 
han been dissolved ; as to which it is admitted that this Court exer- 
ita jurisdiction. This case alHO differs from the two last mentiimed 
in this, that the difficulty in which the plaintiffs are placed, and the 
necessity for the assistance of this (Jourt, is greater in this 
iw : — no reason, certainly, for withholding that aasistance. 
•• How §u the principle upon which these cases have proceeded is ron- 
it with the doctrine in I^oscombc v. Russell, * that in occasional 
of contract between partners, when they are ni>t of b4> gricvouH a 
\ to make it impossible that tin? partnenthip should continue, the 
Cowt Mnnds neuter,* will be to be considered if the case should arise. 

EQ. PL. 21 



162 EQUITY PLEADINGS. [CH. IV. 

and Rome subsequent to the assignment, and should 
pray, that his rights might be established, and the 



It in not noccMAry to express any opinion as to that in the present case ; 
hut it may ho sugf^estod, that the supposed rule that the Court will not di- 
root an account of partnership dealings and transactions, except as conse- 
quent upon a dissolution, thoujrh true in some cases, and to a certain ex- 
tent, has been supposed to be more generally applicable than it is upon 
authority, or ought to be upon principle. It is, howeyer, certain that this 
supposed rule is directly opposed to the decision of Sir J. Leach in Har- 
rison V. Armitage, and Richards v. Dayies. Having referred to so nsany 
cases in which suits similar to the present have been maintained by aome 
partners on behalf of themsclTes and others, it is scarcely necessary to say 
any thing as to the objection for want of parties : and as to the 
of those shareholders who have become bankrupts, those assigiieea are 
aharoholders in their places, for the purpose of any interest they have m 
the property of the company ; and, as such, are included in the nmnlnr if 
those on whose behalf the suit is instituted. A aimilar objectMNi was 
raised and overruled in Taylor v. Salmon, as to the shares of 
Upon the authority of the cases to which I have referred, and of the 
ciple to which I have alluded, if it be necessary to resort to it, I aai «f 
opinion that the demurrer cannot be supported ; and that the 
overruling a demurrer, must be substituted for that proMMBoed hy 
Vice-chancellor.'' See also Post, f 135, «, 135, h ; Richai^ 
pent, 3 Yoang« & Coll. New R. 507, 51^ - 514 ; Harvey •. Hanrcy, 4 
IWvan, R. dl5, '2d0« ^1 ; RicMMsoa v. Hastings, citod Ajrta,§131. 
In the recent ca^e of Richardson v. Hastings (The Eloglish Ji 
16th Marc^h, 1^4), liord Langdak is reported to have said; ^I 
say vet that 1 iM any reanon to doubt the propriety of that 6oamm 
1 made ia Evans v. Stokes ; in fart, I think that the winding mp «f 
partnership imphes a complete setxlement of all the rights and 
as hetwieen the |ianoers thems^ves ; and as they msT he in oa a d h e i 
regard to these rights and liabilities^, you cannot, in ^lat sbomi, 
wind np the partnership in the ahaeooe of any of the partaeis. It 
attended with very great incoDvenienoe, and even with the ahstainii^r 
<WMng what is iost between the parties ; but ooch a oonsequeDoe 
10 ane nooessarily to foUow from the general role of the C^unv and it 
noi be corrected except by competent anthority. Bat, then, tfast 
mle, it was at one time supposed from the seoond gtmenl rain, 
have observed npon, that oomplete jnstioe most he done in the 
matter before the Conn, and that the Court could not and would 
fr.te with a partnership at all, as between partners, nnleas ^^ 
was to he dissolved, and finally wound np and settled ; and then 
cral conflicting cases in the hooks on that subiecu — differam j|iid||i» 
mg expressed vwr strong opinions on the differem views of that 
It now, however, appears venry dear that there is not sooh m i»le 





CH.'IV.] PARTIES TO BILLS. 163 

priorities of himself and of all the other incumbrancers 
might be declared, it will be necessary, that all the 
eredifors, who are entitled under the trust deed, 
should be made parties to the Bill by name, however 
numerous they may be. And if the plaintiff should 
state his ignorance of their residences, and whether 
they were living or dead, it would furnish no sufficient 
excuse ; for the Bill being to have the benefit of a 
charge, all the persons interested in that charge, and 
to repel any priority, should be made parties.^ 



for thb has been derided, that, in a continiiinfr partnership, if a few have 
an interest in a particular subject adverse to all the rest, and claim the 
benefit of that iotercst for themselves, a Hill may be filed against those 
few by one or more on behalf of all the rest. That is certainly a remark- 
able cane in which you have not all the persons interested before the 
Couft; but itia not so much more remarkable than the case of one creditor 
or one legatee suing on behalf of many, and other cases of that sort. Hut 
wiB haTs got to this extent further, that, in the case of an insolvent part- 
MnUp not formally dissolvrd, a Hill may bo filed by one or more against 
the goreming body, to have the assets collected and applied, as far as 
they wiO go, towards the discharge of the debts, without seeking to ascer- 
tain the liabilities and the rights of the partners as between themselves, 
and, theiefore, leaving htigation entirely open as between these parties 
after the debts are paid. In that case nothing is sought but satisfiiction of 
the debts, ^o tanio^ as far as the defective assets will go; and then, 
with ngaid lo the remainder of the debts, all the members of the part- 
■enhip era exposed to such litigation on behalf of unsatisfied creditors 
for eentiibation among themselves as the particular circumstances of the 
caae owy render necessary.'* 

1 Newton v. Vat\ of Kgmont, 4 Sim. R. 685; S. C. 5 Sim. 130. It 
ii observable, that in this case, ij|N)n thf second hearing (5 iSim. K. 1<)0), 
there was a plea put in, which gave the names and places of residi.'nei' of 
all the creditors, who had executed the trust deed, omitting the residenres 
of two only. The Hill was not brought by the plaintiff, as a creditor 
nnder the tmst deed, on In^half of all the creditors to have the trusts vxc- 
ented ; bat it was for the establishment of his own right of priority of 
BBtisfaetinn out of the effects, and incidentally to ascertain the priori tii*.H of 
etheis, where there had already hren a decree made m a suit on 1m li:ilf 
of all the creditors ; and the plaint itf's Hill was not on behalf of :ill the 
creditors. The Vioe-ChanceJIor on this occasion said ; ** I accede to the 
nie laid down in Adair v. New Kivcr Company, 11 Vcs. 42», 4i:). That 
nie, howeter, applies only to cases, where there is one general right iu 



164 EQUITY PLEADINGS. [CH. IV. 

^ 134. Where there are numerous shareholders, it 
often happens, that their shares are assigned ; and 
under such circumstances the question may arise, how 
far the original assignors may be dispensed with as 
parties to a Bill brought by the assignees, touching 
some general interests of all the shareholders, against 
the immediate directors or agents of the company. 
Probably the question would be ultimately resolved 
upon the grounds already stated. If the object of the 
Bill were to enforce some interest common to all the 
shareholders, and by the articles of the company the 
shares were assignable, it might be brought on behalf 
of the plaintiffs and all the other parties in interest, 
and sustained. But if the object of the Bill were to 
dissolve the company, or to subvert its articles, and 
especially if the right to assign were in contestation, 
the assignors and the other shareholders, however nu- 
merous, might be required to be made actual parties 
to the suit.^ 



all the parties, that is, where the character of all parties, so far as the 
right is concerned, is homogeneous : as in suits to establish a modus, or 
a right of suit to a mill. Notwithstanding the inconvenience arising from 
numerous parties, there are some cases, in which they cannot be dis- 
pensed with. Thus, if a Bill is filed to have the benefit of a charge on 
an estate, all persons must be made parties, who claim an interest in the 
charge. In this case, where the question is as to a priority of charge, 
the very nature of the question makes it necessary, that all the creditors 
should be parties. It implies a contest with every other person claiming 
an interest in the land. The circumstance of the persons named in the 
plea being judgment creditors, does not remove the difficulty ; for there 
may have been releases, assignments, want of docketing, and other cir- 
cumstances affecting each claim." But see Ante, § 101 ; Owens v, Dick- 
enson, 1 Craig & Phillips, 48, 56. 

^ See Blain t;. Agar, 1 Sim. R. 37 ; Long v. Younge, 3 Sim. R. 369; 
Walbum v. Ingilby, 1 Mylne & K. 76-78; Wheeler t;. Van Wart, 9 
Sim. R. 193, and cases cited But see Adair t;. New River Company, 
11 Ves. 429, and Ante, ^ 132, note, and Post, ^ 135, 135, a. In the 
case of Blain r. Agar, 1 Sim. R. 37, the Bill was brought by five per- 
sons, on behalf of themselves and the other parties to an indenture, who 



CH. IT.] PARTIES TO BILLS. 165 

§ 135. These appear, so far as the authorities go, 

to be the princi])al distinctions applicable to the sub- 

— • — — - — - 

vere either originally, or by assignment, holders of 1600 shares in a 
joint stock company, and who by the indenture had transferred their 
shares to the plaintifls in trust for thcmselt'cs. The Bill was brought 
igftintt the directors, imputing to them fraudulent conduct in the manage- 
ment of the stock and property of the company ; and it averred, that the 
pUintifls were ignorant of the names of all the shareholders, except those, 
on whose behalf they sued ; but it did not seek a discovery of their 
names. It further averred, that the plaintiffs, and those for whom they 
sued, had paid certahi instalments or deposites of money ; and that the 
money had been so paid upon the fraudulent misrepresentation of the 
defendants. It further averred, that the parties to the indenture were 
rery numerous, so as to make it inconvenient to place them as parties 
on the record ; and it prayed, that the defendants might be decretal to 
pay the money to the plaintiffs, which had been paid on the 109() ^h:lre.s. 
There was a demurn'r to the Hill for the want of parties ; and the Vice- 
Cbaocellor held the objection fatal. It is observable, that the Bill was 
Dot on behalf of all the shareholders, but only of those holding the IfUiO 
•hares ; and it did not seek a dissolution. The objection for want of 
partiea was twofold ; first, that it was a case of partnership, and all the 
ahanboldera were not parties ; secondly, that most of the shareholders 
were assignees of shares, and as the shares were mere choses in action 
the assizors ought to have been made parties to the suit, for they mi^ht 
hvn no right to assign their shares. The Vice- Chancel lor seems to 
have decided the case on the latter ground, and said : '* The plaintiffs 
•oe 00 behalf of themselves and certain other persons, who are sul)- 
aeribeiB, together, of 16!M> shares, and who have executed a deed, stated 
ifl the Bill, by which they assign to the plaintiffs their respective interests 
IB thia concern, and constitute the plaintiffs tlieir attorneys to institute 
any actum or suit, in order to give effect to their interests, or to enter 
into any compromise for their claims ; but u\Kn\ condition that, af^rr de- 
ducting iheir ex|iens(*s, thr pinintitrs are to litdd what they shall ho recover 
or recfive, in trust for tin* naid other {Mirsons, respectively . Aniun^.^t 
many objections for want uf parties, the defendants insist, that these other 
penona ought to have been iiumed as parties tu this suit. The phiintitrs 
do not deny, that, accord int' tu the general principles of a (^\>urt of ['A{ui- 
ly, theae other persons ought to have been parties. Hut they ur^e at the 
bar, what is indeed stated in the Bill, that these fienons srcr very nniner- 
o«a, and that naming them as parties on the record, would in all pniba- 
bility, render it impossible for the plaintiffs to obtain a decree in the cause. 
Thia allegation may be very true. In certain s|)ecial cases the Court has 
adopted a practice, which, by {M-rmittint; one or more |»ersr»nH to repn'!U.'nt 
in a aait all, who have similar interestM, has avoided the inconvenience, 
wbi^ reaolta from numerous parties. But it has never been stated, as a 



166 EQUITY PLEADINGS. [CH. IV. 

ject of parties, when they are very numerous, and 
it is impracticable to bring all the persons interested 
before the Court, It is obvious, that, in the present 
state of the Equity doctrines on this subject, very large 
classes of cases of this nature may exist, in which no 
remedial justice can be administered, and irreparable 
mischiefs may be done.^ For, in many of these cases, 
relief may be sought, in which all the shareholders 
have not a common right, or a common interest, to be 
advanced, and protected by the Bill. And, indeed, 
the Bill may, upon proper grounds, seek a dissolution 
of the company, or the protection of rights, in which 
other members may have an adverse interest, or op- 
posing wishes. Whether Courts of Equity have been 
wise or not in the limitations, which they have put 



general principle, that this course may be taken in all cases within the 
mischief ; nor has it ever been done in cases analogous to the present. 
And, if I were to yield to the reasoning here, I fear I should be doing, 
what I have no authority to do, not following the practice of the Court, 
but making a new practice." See the same case again before the Court 
after an amendment, 2 Sim. R. 289. Whether, if the Bill had been 
brought in behalf of all the shareholders it would have been sustainable, 
does not appear to have been decided. It does not seem necessary, in 
all cases, to make the assignors parties, as we shall presently see ; nor 
does there seem any solid objection to a Bill's being, in common cases, 
maintained by a few in behalf of all shareholders, whether original share- 
holders or assignees, any more than in maintaining a Bill against a few 
shareholders, whether original shareholders or assignees, where they are 
too numerous to be all made parties. The latter was the predicament in 
Adair v. New River Company, 11 Yes. 429. See also Cockbum v. 
Thompson, 16 Ves. 328, 329. Walburn ». Ingilby, 1 Mylne & K. 76, 
77. See also the remarks of Mr. Baron Alderson in Fenn v. Craig, 3 
Younge & Coll. 216, 224, and the cases collected in the Reporter's note 
(a), p. 224. But see Ante, ^ 130-131, a ; Post, § 135, a, and note ; 
Richardson v. Larpent, 3 Younge & Coll. New R. 507, 512-514 ; Tay- 
lor V. Salmon, 4 Mylne & Craig, 134 ; Wallworth v. Holt, 4 Mylne & 
Craig, 619, 634-640; Harvey v. Harvey, 4 Beavan, R. 215, 220, 221 ; 
Benson v. Heathom, 1 Younge & Coll. New R. 326. 

1 See Van Sandau v. Moore, 1 Russ. R. 441, and other cafies cited in 
Ante, ( 132, note. See also $ 135, a. 



CH. IV.] PARTIES TO BILLS. 167 

upon their right to maintain proceedings under such 
circumstances, instead of allowing all persons to be- 
come parties, either upon a Bill on behalf of all, or by 
coming in and resisting the objects of the Bill, under 
the interiocutory proceedings, is a point upon which a 
commentator ought not perhaps to hazard any decided 
opinion. That much of the difficulty, however, has 
been imposed upon the Courts by their own choice of 
rules, founded, in a great measure, upon principles 
purely technical, will scarcely be denied. And why 
the same proceedings might not have been permitted, 
even to the extent of binding unrepresented interests, 
after due notice to the parties to appear and represent 
them, as is done in the ordinary cases of creditors 
against the estates of persons deceased, it is not very 
easy to state in a satisfactory manner.^ 



1 See Lord Lyndhurst's judgment in Small v. Atwood, 1 Younge, R. 
457, 458, died Ante, ^ 132, note ; Post, § 135, a ; Richardson v. I^ar- 
pent, 3 Younge Sl Coll. New R. 507, 512-514; Post, 135, b, and note. 
1b Richardson v. Hastings, (The English Jurist for 10 Man*h, 1811, p. 
807,)Loid Langdale is reported to have said : '* All cases of this kind are 
Btlended with some degree of difficulty, the conclusion to be arrived at 
depepding on mi her nice circumstances ; and, I must say, that the argu- 
ments in support of a demurrer of this sort ha%'c mostly a very strong 
fiwndation ; and the reason is, that cases of this kind always deviate fn»m 
two old general rules of the (-ourt. One is, that all persons interested iu 
llie subject-matter of the suit ought to be parties ; the other is, that the 
Conn ought to do complete justice in every case, and not lea%'e matters 
mvolved in the suit to lie the subject of future litigation. Now, this is a 
Bill which certainly is a departure, tu a certain extent, from buih these 
rules, beeanse it is proposi^d to be prrtseruteil in the absence of parties 
inteiesied in the suit ; and it proposes, that the rights of the several par- 
ties to the rams to be recovered shall be left at their disposal, if they ran 
agree, and if they cannot agree, they must be left for future litigation. 
Bnt exeeptions to the above rules have been at all times allowe<l. I 
leeolieet, in my professional studies, having a copy of a hook in which 
of the chapters was headed, * In what Cases necessary Pari it's arc 
with.* That was the subject of tlie whole chapter. Hut it has 
eeesoary to make thesit exeeptions larger with the progress of 
the tnntictions of mankind ; and certainly every body who reads what 



168 EQUITY PLEADINGS. [CH. IT. 

§ 135, a. It may not, however, be thought unwor- 
thy of the deliberate consideration of the profession, 
whether the doctrine has not already been pressed be- 
yond the legitimate limits, within which it can safely 
be applied, and whether it ought to be carried farther 
in its application to new cases, as they may arise in 
judgment. If Courts of Equity are in the habit of 
declining to act in the absence of particular parties, 
merely because there is a possibility of their decree 
working some injustice to persons, not represented or 
before the Court, there would seem to be at least an 
equally strong ground to assert, that where the injury, 
by abstaining from the exercise of jurisdiction on ac- 
count of a defect of such parties, will be positive, 
immediate, and irreparable^ they ought to assert juris- 
diction. In such cases, if there is no possibility of 
bringing such parties before the Court, the general 
principle would seem to apply, that parties should be 
dispensed with, who are beyond the reach of the 
Court, from a moral or a physical impossibility, and that 
the Court should decree according to the merits of the 
controversy between the parties actually before it, 
leaving, as far as practicable, the rights of all other 
persons untouched, and unprejudiced by the decree, 
or enabling them to appear and contest the validity of 
the proceedings, so far as their particular interests are 
concerned. In truth, in many cases, Courts of Equity 
now assert a jurisdiction to bind the interests of many 
parties not actually before them ; and there does not 

Lord Cottenham has more than once said on soch occasions must be per- 
fectly satisfied of the justice of his observations, that the Court must 
always not only act within the limits of its jurisdiction, but must apply 
the powers which are so necessary for the administration of justice to the 
circumstances which are found in society in our own times, — that the 
rules of the Courts must be adapted to the circumstances in which the 
execution of justice is required." 



CH. IT.] PARTIES TO BILLS. 169 

seem any sound reason, why the possibility of injustice 
to third persons should overcome the duty to grant 
relief against present injuries and mischiefs between 
the parties actually before it, where the refusal must 
otherwise necessarily work irreparable injustice. Be- 
sides ; it is to be considered, that the general rule, 
requiring all persons in interest to be made parties to 
the suit, is, in most cases, not in any just sense, a right 
of the parties brought before the Court, but rather a 
rule prescribed by Courts of Equity to themselves in 
the exercise of their jurisdiction, founded U]X>n their 
own notions of public |K)licy, or public convenience. 
It is, in a great measure, a rule of discretion, 
founded in the anxiety of those courts to do justice 
among all the parties, having an interest in the subject- 
matter or the object of the suit, whether that interest 
be mediate or immediate, present or future, for the 
purpoK of suppressing future controversy and litiga- 
tion. The rule is useful, when applied to its proi>er, 
legitimate purposes. But it may be seriously asked, 
whether it can be justified, where, in its actual appli- 
cation, it must necessarily produce irremediable injus- 
tice to the persons asking relief at the hands of tlu; 
Court, and there is an utter impossibility of ovc^rconi- 
ing the difficulty and proceeding against the absent 
parties. When all the persons in interest can be made 
parties, and the decree must aflect their interests, there 
seems to be a sound reason for insisting u|)on a strict 
adherence to the rule. But when they cannot be 
made parties, and a decree may l)e made tx^tween the 
parties before the Court, which does not positiv(*ly and 
absolutely conclude the rights of other persons, but 
leaves them to act ui)on those rights without prrjudire, 
there seems good reason to say, that Courts of Kriuity 
ought, like Courts of Law, to act upou the case bt;fore 

EQ. PL. 22 



170 EQUITY PLEADINGS. [CH. IV. 

them, endeavouring to provide, as far as they may, for 
a reasonable protection of any unrepresented rights. 
The suggestion of a learned chancellor (which has 
been already cited), contains, on this subject, a most 
impressive lesson ; — That Courts of Equity ought to 
adapt their practice and course of proceeding, as far as 
possible, to the actual state of society ; and not, by 
too strict an adherence to forms and rules established 
under very different circumstances, decline to adminis- 
ter and enforce rights, for which there is no other 
remedy.^ 

§ 135,6. Some very important decisions have been 
recently made, which seem to support the preceding 
reasoning; and, indeed, to take a distinction and 
suggest a mode of proceeding in cases of this sort, 
which may obviate most, if not all of the practical diffi- 
culties growing out of the former decisions. It is this ; 
that where the different members of an unincorporated 
association have different interests, some being in favor 
of winding up its affairs and procuring a dissolution, 
and others opposed to it, a Bill may be brought by 
some of the shareholders on behalf of themselves and 
all agreeing with them for such a dissolution ; and 
so many of those opposed to it, as may fairly be pre- 
sumed to represent the interests of all, should be 
brought before the Court as defendants ; and then the 
Bill may be retained for discussion upon its merits.* 

1 Ante, § 76, c. Taylor v. Salmon, 4 Mylne & Craig, 141, 142. See 
also Ante, ^ 120, 132, note (1), and the cases there cited. 

9 Wallworth v. Holt, 4 Mylne & Craig, 619, 634-640 ; Ante, § 132 ; 
Richardson o. Larpent, 3 Younge & Coll. New R. 507, 512-514. In 
this last case, Mr. Vice-Chancellor Bruce said ; *' This is the case of a 
very numerous unincorporated trading company, between the members of 
which there is a schism, one division taking one view of certain important 
proceedings relating to their common interest, the other a different view, 
and each division comprehending, as it appears, such a number of persons 



CH. IV.] PARTIES TO BILLS. 171 

§ 136. Having stated the general rule, as to parties, 
and the general exceptions to that rule, it still remnins 



M to render it sulMiantially impracticable to conduct a suit comprising all 
the individuals of either class. The Bill is filed by the plaintitfs on be- 
half of themselves, and all other the members of the partnership. It may 
be, that, as far as the plaintiffs are concerned, it is properly filed on behalf 
of themselves and those members, who take the same view of the matters 
in dispute as they do, and not properly filed on behalf of all the mem- 
bers. But upon this it is nut necessary to give an opinion. In regard to 
the defendants, none of the dissentients from the views of the plaintiffs are 
here in that character. It is true that some are present ; but all present 
are directors or trustees, — persons to whom, more or less, arc committed 
the {general government and administration of the company. They arc 
all, therefore, directors or trustees, more or le^s, for all, and, sustaining 
that character, cannot, it may fairly be supposed, exercise so fully and 
freely the right and power of opposing tiie plaintifTs' views, as those 
perwns may be considered lik(fly to he capable of doing, who owe no 
duty to the plaintiffs, beyond the simple and ordinary duty of partners. 
The points on which the partners are divided are ; — first, the time, 
maooer, and circumstances of dissolving the company; secondly, as to 
the question, whether the capital haii hern rightly increased, that is to say, 
whether the plaintiffs can he compelled to pay to the parties, who are in 
the situation of governors of the concern, more than a certain specified 
amoaot of capital. One object of the Bill is to obtain a dissolution, anoth- 
er, more plain object, to exempt the plaintifl^s from the liability to contrib- 
ute to a fbrther capital. But the larger lM)dy of the shareholders are those 
who have actually contributed that increased amount of capitid which is 
in dispute. Thes«; persKins, it lieing at least very doubtful whethiT, hav- 
ing contributed the mon(*y, they can recover it hack again, have plainly, 
as it seems to me, an interest that the plaintifTit should farther contribute ; 
bat the plaintifis, desire that they the plaintiffs should be freed from cnn- 
tnbutinn. It is too much to »ay that fjuestions so important should be 
decided without the preHi-nri' of at Ifast an ade(|iiHte number to maintain 
each mHu. But, as I havi- already haiil, only the directors and truMecs 
are hi*re as defendants, — nif-n who must be n*Mricted in the uKule and 
form of their oppiiHitiim, iM-cauM* they owe the plaintitfK a duty beyond 
that which tixiain simply between partner and partner. Tlifv an* ofTi- 
rully obliged tn havp an equal mind towanls the shan'holdern, aiul ran not 
properly be considered as representing an opposition. 

•' Considering the nature of the queKtinuH agitated on this Bill, and fak- 
ing the answer to In' trur fur tliiH pnrpoHc only, 1 must say, that \\w suit 
is defective for uant of partii-.«. My prewnt impres»ion ih not, that, in 
every case where a dissolution m MMight, all the individual partner m iuuM, 
of necessity, be present, (ienerally, the ruh* may )h> so, but I can eon- 
eeive a ease, where it would be most important to the interest of the plain- 



172 EQUITY PLEADINGS. [CH* IV. 

to inquire, who, in the proper sense of the rule, are to 
be deemed necessary parties, whose joinder in the 
suit cannot be dispensed with. It has been said, that 
persons are necessary parties, when no decree can be 
made respecting the subject-matter of litigation, until 
they are before the Court, either as plaintiffs, or as de- 
fendants ; or where the defendants, already before the 
Court, have such an interest in having them made par- 
ties, as to authorize those defendants to object to pro- 
ceeding without such parties.* These propositions are 
true ; but they furnish no sufficient test as to the 

iifis, and their right, to have the partnership dissolved, and yet, though 
the legality of the partnership were recognized by law, it might be impos- 
sible in substance to obtain a decree for dissolution, if it were necessary 
to have all the parties present. Such a state of things could hardly be 
permitted to exist by any court of justice, or in any civilized country, nor 
am I aware that any judge has gone the length of saying that it should 
or does exist. I do not say that all the parties dissentient should be here ; 
but there ought to be a sufficient number to discuss the present questions 
freely and unrestrainedly ; or, at all events, with more freedom and pro- 
priety than they can be discussed by the defendants now on the record." 
See also Harvey V. Harvey, 4 Beavan, R. 215, 220, 221. Upon the sub- 
ject of parties, the 47lh and 48th Rules of the Equity Rules of the Su- 
preme Court of the United States, of January Term, 1842, provide as 
follows. ** In all cases where it shall appear to the Court, that persons, 
who might otherwise be deemed necessary or proper parties to the suit, 
cannot be made parties by reason of their being out of the jurisdiction of 
the Court, or incapable otherwise of being made parties, or because their 
joinder would oust the jurisdiction of the Court as to the parties before 
the Court, the Court may, in their discretion, proceed in the cause with- 
out making such persons parties ; and, in such cases, the decree shall be 
without prejudice to the rights of the absent parties." — "Where the 
parties on either side are very numerous, and cannot, without manifest 
inconvenience and oppressive delays in the suit, be all brought before it, 
the Court in its discretion may dispense with making all of them parties, 
and may proceed in the suit, having sufficient parties before it to represent 
all the adverse interests of the plaintiffs and the defendants in the suit 
properly before it. But in such cases the decree shall be without preju- 
dice to the rights and claims of all the absent parties." The Act of 
Congress of February 28, 1839, ch. 36, § 1, already cited, Ante, § 80, is 
also important to the same purpose. 
^ Bailey w. Inglee, 9 Pwge, R. 879. 



CH. IT.] PARTIES TO BILLS* 173 

question, who are necessary parties ; for the inquiry is 
still open, when will a Court of Equity proceed to a 
decree without them ; and what is the interest, which 
entitles the defendants before the Court to insist upon 
the presence of other persons as defendants, before a 
decree is made, which shall bind themselves. In a 
general view, all parties in interest are the proper ob- 
jects of the rule. But the nature of that interest 
must still remain to be ascertained ; as well as the 
point, how far it is liable to be afibcted injuriously by 
the decree. This can be best examined by a review 
of the principal classes of cases, to which the rule has 
been applied, and from which its force, as well as the 
grounds of its application, may be fully understood. 

^ 137. Before proceeding, however, to this review, 
it may be proper to make a few explanatory remarks 
of a general character. And, in the first place, in re- 
gard to the nature of the interest, it is to be consid- 
ered, that it is wholly unimportant, whether it be a 
legal interest, or an equitable interest of the absent 
parties in the subject-matter of the suit ; and, suiiject 
to the limitations and exceptions hereafter stated, it is 
equally uuimportcint, whether it be a present, direct, 
and immediate interest, or a future, remote, fixed inter- 
est. In cither case, if the interest of the absent par- 
ties may be aflfected, or bound by the decree, thc^y 
must be brought iK^fore the Court, or it will not pro- 
ceed to a decree. 

^ 138. In the next place, an interest of the absent 
parties in the subject-matter, ex directo, which may t)e 
injuriously aflfected, is not indispensable to the o{)era- 
tion of the general rule ; for, if the defendants actu- 
ally before the Court may be subjected to undue in- 
convenience, or to danger of loss, or to future litigation, 
or to a liability under the decree, more extensive or 



174 EQUITY PLEADINGS. [CH. IV. 

direct, than if the absent parties were before the 
Court, that of ilself will, in many cases (as we shall 
presently see), furnish a sufficient ground to enforce 
the rule of making the absent persons parties.* 

^ 139. In the next place, the plaintiff may, by the 
frame of his Bill, as by waiving a particular claim, 
avoid the necessity of making persons, who might be 
affected by it, parties, though that claim might be an 
evident consequence of the rights asserted by the Bill 
against other parties.^ This, however, is not allowed 
to be done to the prejudice of others.^ Thus, for ex- 
ample, if the obligee of a bond, to which there are 
three sureties, the principal obligor being dead, were to 
seek, by a Bill in Equity, the full payment of the bond 
from the sureties, all the sureties must be joined. But 
if he should seek only for his proportion from one surety 
alone, the same objection might not apply; unless 
the absence of the other parties would be a prejudice 
to him.* 

^ 140. In the next place (as has been well re- 
marked by an eminent author) , in many cases the ex- 
pression, that all persons, interested in the subject, 
must be parties to the suit, is not to be understood as 
extending to all persons, who may be consequentially 
interested.* Thus, in the case of a Bill, which may 
be brought by a single creditor against the executor 
or administrator for satisfaction of his single demand, 
out of the assets of a deceased debtor (as before 
noticed ^), although the interest of every other unsatis- 

1 Bailey v. Inglee, 2 Paige, R. 278 ; Gilb. For. Rom. 157. See Cal- 
vert on Parlies, ch. 1, p. 9- 12. Post, § 140, 151, 159, 160, 167. 
9 Post, ^214,221,228. 
3 Mitf. Eq. PI. by Jeremy, 179, 180. 
* Ante, § 125 ; Anon. Eq. Abridg. 166, pi. 7. 
5 Mitf. Eq. PI. by Jeremy, 170, 171. 
« Ante, $99, 100-103. 



CH. IT.] PARTIES TO BILLS. 175 

fied creditor may be consequentially aflfected by the 
suit; yet, that interest is not deemed such, as to 
require, that all the otlicr creditors should be parties, 
notwithstanding the decree, if fairly obtained, will 
compel them to admit the demand, ascertained under 
its authority, as a just demand, to the extent allowed 
by the Court, in the administration of assets ; but they 
will not be bound by any account of the assets taken 
under the decree.' So, in all cases of Bills by credi- 
tors and legatees against the executor or administra- 
tor, the persons entitled to the personal assets of a 
deceased debtor, or testator, after payment of the debts 
or legacies, are not deemed necessary parties, although 
interested to contest the demands of the creditors and 
other legatees.^ And, if the suits be fairly conducted, 
they will be bound to allow the demands, admitted in 
those suits by the Court, although they will not be 
bound by any account of the property taken in their 
absence.' Hence it is, also, that residuary legatees 



. 1 Miff. Eq. PI. by Jeremy, 100. 

■ Mitf. Eq. PI. by Jeremy, 170, 171 ; Dandridge v. Washington, 2 
Peters, R. 377. Rut see Pust, § 150, and nutes. 

3 Milf. Eq. PI. by Jeremy, 170, 171 ; Anon. I Vem. 2«l ; Wiser v. 
BlaMej, I John. Ch. R. 437 ; Newland v. Champion, 1 Vcs. 105; Law- 
■OB V. Bmrker, 1 Bro. Ch. R. 303. It is pnibably on this account, tliut 
CourU of E<(uity are so much disposed to favor suits brought by a credi- 
tor oo behalf of all the creditors, or by a legatee on behalf of all other 
legalees, at the {lersons, thus made t/uasi parties, are entitled to appear 
and repneeot their interesta before th4> Court, or its authorized airfiit (the 
Master), to whom the suit is referred, for the purjioso of settling the ac- 
cooata of the administration. Dut the doctrine in the text is now rlcarly 
aettled, although Lord Loughborough is reported once to have doubted it. 
Waiawright •. Waterman, I Vcs. jr. 313; Lawson v. Barker, 1 Bro. 
Ch. R. 303. The common rule is, that in a suit brought by a creditor or 
leffaiee against an executor or cre<1iu)r, the residuary legaU'cn, or dis- 
tributees, need not lie niaili> parties. Anon. 1 Vern. \il\l ; Lawson v. 
Barker, 1 Bro. Ch. U. 303; P4wt, ^ 118, 150; Dandridge v. Washington, 
9 Pelcra,R. 377; Brown v. Ihmthwaite, 1 Madd. R. 4IH. Mr. Calvert, 
in hia able work on Parties in (^(uity (p. 20, 21), speaking on this point 



3. 



176 EQUITY PJ.EAD1NOS. [CH. IV. 

need not be made parties to a Bill brought by credi- 
tors or by specific legatees against them to recover 
their debts or legacies. 

^ 141. Perhaps the true explanation of this doctrine 
is, that, in cases of this sort, Courts of Equity proceed 
upon the analogy of the Common Law, which treats 
the personal representative of the deceased debtor or 
testator as the regular representative of all the per- 
sons, who are interested in the personal assets, and 
bound by his bond fide acts, so far as third persons 
are concemed.^ If so, the doctrine stands upon a very 
intelligible and reasonable footing ; and we shall pres- 
ently see, that, in this view, it is not peculiar to this 
class of cases.' 

§ 142. And this leads us, in the next place, to Mg- 
gest, that Courts of Equity do not require, that all per- 
sons, having an interest in the subject-matter, should, 
under all circumstances, be before the Court as par- 
ties. On the contrary, there are cases, in which cer- 
tain parties before the Court are entided to be deemed 
the full representatives of all other persons, or at least 



says ; '* There are certain persons whose representative character is de- 
rived from the law. The most familiar instance is that of executors mod 
administrators in respect of the personal estate of their testator or intes- 
tate. Whenever a suit is instituted which affects that personal estate, 
all the legatees have precisely that kind of interest which has been speci- 
fied in the general rule, but they are unnecessary parties, inasmuch as by 
law their interests are protected; they themselves may be said to be 
represented in the person of tho executor or administrator. It would be 
very inconvenient to bring them all in their own persons before the Court, 
so they are allowed to appear by their representatives ; thus an adequate 
protection is provided for their interests, and the spirit of the general rule 
is adopted, although the letter of it is, for the sake of convenience, 
evaded." But see Post, ^150, and notes. 

1 Mitf. Eq. PI. by Jeremy, 165, 166 ; Wiser v. Blackley, 1 John. Ch. 
R. 437; Newland v. Champion, 1 Yes. 105; Dandridge v. Washington, 
2 Peters, R. 377. 

s Post, § US, 150. 



. "•• J 



en. !▼.] PARTIES TO BILLS. 177 

SO far, as to bind their interests tinder the decree, al- 
though they are not, or cannot he made parties.' 

^ 143. Thus, for example, where real estate had 
been purchased by a joint fund, raised by a subscrip- 
tbn, in shares of more than two hundred and fifty 
subscribers; and the property had been conveyed to 
certain persons, as trustees, for the subscribers; and 
afterwaids a Bill was brought against the trustees for 
a sale of the real estate under a mortgage made in 
pursuance of the trust, it was held not necessary for 
the subscribers to be made parties to the Bill ; for the 
trustees, by the very nature and constitution of such a 
trust, must be held sufficiently to represent the in- 
terests of all the subscribers ; and a different doctrine 
would be attended with intolerable hardship and in- 
con venience, as it might be impossible to make all 
the subscribers parties.^ 

^ 144. Upon similar grounds of a virtual represen- 
tation of all the proper interests, where there is real 
estate m controversy, which is subject to an entail, it 
is generally suflficicnt (all the parties having ante- 
cedent estates being before the Court) to make the 
first tenant in tail in esse, in whom an estate of in- 
heritance is vested, a party with those claiming the 
prior interests, without making any persons parties, 
who may claim in remainder, or reversion, after such 
vested estate of inheritance. It will make no differ- 
ence in the case, whether the Bill be brought by or 
against such tenant in tail ; for in each case he is 
equally the representative of the subsequent cstatc^s 
and interests.' And a decree for or against such first 



I See CaJ^ert on Parties, ch. 1, ^ :2, p. 20 -GO. 

■ Ven Veehten ». Terry, 2 John. Ch. R. Itt7 ; Pcmt, ^ 150. 

> Pom, 4 146 ; CaJvert on Parties, ch. 1, $ I, p. 48- 5S). 

EQ. PL. ^ 



178 EQUltY PLEADHSTGS. [CH. IV. 

tenant in tail, will gene^tty bind those in remainder 
or reversion, although, by the failure of all the previous 
estates, the estates in remainder or reversion may 
afterwards vest in possession.^ On this account it is, 
that a person so entitled in remainder or reversion, and 
afterwards becoming entitled in possession, may ap- 
peal from the decree made against the person having 
a prior estate of inheritance, and cannot avoid the 
effect of the decree by a new Bill ; * for he is treated, 
as being, in some sort, a privy to the decree ; and he 
may make himself a party to the original suit, by filing 

1 Mitf. Eq. PI. by Jeremy, 173 ; 1 Mont. Eq. PI. 63, 64 ; Ck»oper, Eq. 
PI. 35, 96; Id. 185, 186; Finch «. Finch, 1 Yea. 492, 493; Lloyd «. 
Johnes, 9 Yes. 37, 52-69; Cockbum v. Thompson, 16 Yes. 326; Rey- 
noldson v, Perkins, Ambler, R. 565. Mr. Cooper, in his Ek^aity Plead- 
ings, p. 35, 36, says, that " Where there is a suit respecting a real estate^ 
which is settled or devised to one for life, remainder to the first and 
other sons in tail, in the common way of limiting estates, all the persons 
interested, as far as the first tenant in tail in existence, must be made par- 
ties.*' This is perfbctly correct. But he adds ; *' Bat a remainder-man, 
expectant upon an estate tail, need not be made a party, because he is 
not regarded in Equity ; neither could he be hound. ^^ The first reason is 
true ; but, from what has been stated in the text, the latter reason is in- 
correct; for he would be bound by the decree. The truth is, that Mr. 
Cooper took the position from an anonymous case in 2 Eq. Cas. Abridg. 
168, pi. 8, where it is said ; *' That an exception was taken to a Bill for 
want of parties, because the remainder-man, expectant upon an estate 
tail, was tiot a party, and the end of the Bill was to impeach a settlement. 
The exception was overruled, because such remainder-man is not re- 
garded in Equity, neither can he be bound." S. C. Wyatt's Pract. Reg. 
317. The statement from Mitf. Eq. PI. by Jeremy, p. 173, in the text, 
contradicts this ; and the cases of Lloyd v. Johnes, 9 Yes. 56, 57, Gifilard 
r. Hort, 1 Sch. & Left. 408, 409, 411, Reynoldson v. Perkins, Ambler, 
R. 565, and Cockburn v. Thompson, 16 Yes. 326, also inculcate the doc- 
trine stated in the text^ Although the general rule is as stated ; yet it is 
not to be taken as true, that the remainder-man is universally bound ; 
for he is bound only in cases, where the suit is not under a contract mith 
the tenant in tail, but it is a suit to bind the land in regard to charges or 
other things, equally binding and affecting all persons, who take per 
formam doni, Lloyd V, Johnes, 9 Yes. 57-61. 

« Mitf. Eq. PI. by Jeremy, 173 ; Giflkrd v, Hort, I Sch. & Left. 408, 
411 ; Lloyd v. Johnes, & Yes. 51-65. 



CH. lY.] PARTIES TO BILLS. 179 

a supplemental Bill, to have the benefit of tiu; pro- 
ceedings therein, for the purpose of appealing from 
the decree.' 

^ 145. And, as it is sufficient to bring the first 
tenant in tail before the Court, if in being, whether 
he be plaintiff or defendant in the suit; so, if there be 
DO such tenant in tail in being, the first person in 
being, entitled to the inheritance, should be made a 
}iarty ; and if there be no such ]3crson in being, then 
the tenant for life ; and in such a case, the decree 
made will bind the other (persons not in being.^ Thus, 
if there be a tenant for life of an undivided share of 
an estate, with remainders to his unborn sons in tail, 
the tenant for life may maintain Bill for a partition, 
and the decree will be binding ui)on the sons, when 
they come in esse.^ So, if there l)e a tenant for life, 
remainder to his first son in tail, remainder over ; and 
the tenant for life is brought l)efore the Court bc^fore 
he has issue, it is settled in Equity, that the contin- 
gent remainder-men are barred, and (as has been said) 
from necessity.^ So, where there an» contingent limi- 
tations and executory devises to persons not in being. 



» GiOard v, Ilort, 1 Sch. & f-*fr. 400, 411 ; (V^borne v. I'Micr, \i Bra. 
Pari. Vm. 314; S. C. fi Hm. Pari. ('a». by Tomlinn, 'JO; Lhiyti r. 
Jnhnea, 9 Vc». 55, STi, 511 ; ('.Miprr, F-q, PI. 77 - HS ; Id. 185, IWi. 

S Cooper. Ki\. PI. 30; (.'itrunl r. Hon, 1 Sch. & Ufr. 407, 40H. .Sic 
also Dayn.-ll v. rhimijirrrts, 1 Ki]. AbridiJ. 4<N), jil. 4. It has bi'rii rr- 
marked hy fjitrd KMon, that thcrr arc raHf.'R, wlirrr it may br pnipi'r, if 
nui indiapefiMiblc, to make a Hubiieqiiciit remainder-man, after ihr f\rs\ 
estate nf inhfritann-, a part\ ; an, for pxam|)lf*, where the prior i ■state nf 
iDhetitancf' in a frr tail in a minor; for. in snch a raM*. it may br saiil, 
that the tenant in tail may nr\irr Ix^ able to bar him ; and if \w is joiiifd 
in tnch a ease, it is no raiisr lor a demurrer. Ilunib.-y v. Fitzhanlin^M', 
Yea. 351. Pout, § 7U*J. 

a Gaakell v. (iaskell, Sun. II. G43. 

< Cooper, 1->|. PI. 30; Id. 77-U3; Id. 185, IbO; Uiflard r. Ilort, 1 
Scb. iL Lefr. 400 ; Poet, 4 70-i. 



180 EQOItir PLEADINGS. [CH. IV. 

they may in like manner be barred by a decree against 
a person claiming a vested estate of inheritance.^ 

§ 146. In like manner, where a Bill is brought by 
a tenant in tail, or by any other person having the first 
estate df inheritance, other persons, having a subse- 
quent vested or contingent interest, will generally be 
bound by the decree, and will be entitled to the bene- 
fits, as well as to the disadvantages thereof,* We 
say, they will generally be bound ; for there may be 
cases, in which an exception ought to be allowed 
Udder special circumstances, and in which persons, 
claiming subsequent vested or contingent interests 
after the first estate of inheritance, would not be en- 
titled ta the benefit or suffer the disadvantage of a 
former decree, had by or against the owner of the 
first estate of inheritance.' The cases within the ex- 
ception must, however, stand upon peculiar equities 
and interests, not affected by the same circumstances, 
which attach to the prior parties.'* 

§ 147. But Courts of Equity are very scrupulous of 
afiecting the interest of persons not before the Court 
in cases of this sort, where their interest is not de- 
pendent upon the prior estate of inheritance, and it is 
practicable to make them parties. Hence this prin- 
ciple of a virtual representation does not apply to 
cases, where a person seised in fee is liable to have 
that seisin defeated by a shifting use, or conditional 
limitation, or executory devise ; for in such cases the 
estate is not suJQSciendy represented in Equity by per- 



1 Mitf. Eq. PL by Jeremy, 173, 174 ; Cooper, Eq. PI. 36, 77-83. 

« Lloyd V. Johnes, 9 Yes. 52-61 ; Cooper, Eq. PI. 36, 77-83. 

3 Lloyd r. Johnes, 9 Ves. 52, 57, 58, 60, 61 ; Wingfield v. Whaley, 2 
Bro. Pari. Cas. 447; S. C. 1 Bro. Pari. Cas. by Tomlins, 200; Cooper, 
Eq. PI. 77-83. 

* Lloyd V. Johnes, 9 Ves. 52, 58, 60; Cooper, Eq. PI. 80, 81, 83. 



-ri_L 



CH. IT.] PARTIES TO BILLS. 181 

sons having the first estate of inheritance ; but the 
persons entitled to such use, limitation, or devise, if in 
€f«e, must also be made parties.^ Thus, if a person 
is in being, claiming under a limitation by way of 
executory devise, not subject to any preceding vested 
estate of inheritance, by which it may be defeated, he 
must be made a party to a Bill affecting his rights.^ 
So, if a person entitled to an interest prior in limita- 
tbn to any estate of inheritance before the Court, 
should be born pending the suit, that person must Ix; 
brought before the Court by a supplementary Bill.^ 
So, if by the determination of any contingency a new 
interest should be acquired, not subject to destruction 
by a prior vested estate of inheritance, the person 
having that interest must be brought before the Court 
in like manner.'* So, if by the death of the person, 
having, when the suit is instituted, the first estate of 
inheritance, that estate should be determined, the per- 
son, having the next estate of inheritance, and all the 
persons, having prior interests, must be brought before 
the Court.* 

§ 148. Upon grounds of a very different nature, where 
a suit is brought for the execution of a trust by or 
against those claiming the ultimate benefit of the trust 
after the satisfaction of prior charges, it is not neces- 
sary to bring before the Court the persons claiming 
the benefit of such prior charges; for their interests 
are not intended to be touched by the Bill.^ Thus, 

1 Goods V. Williamii, The (Kngliah) Jurist, December 93, 1843, p. 1 123, 
IIM, S. C. 

• Milf. Eq. PI. by Jeremy. 174 ; Shrmt v. Birch, 3 Bro. Ch. R. 228 ; 
Haodwik v.- Shaen, Colics, Pari. C^as. 122. 

' Mitf. Eq. PI. by Jcn'my, 174. 

< Mitf. 1*>|. PI. by Jeremy, 174 ; Cooper, Eq. PI. 77-70. 

• Mitf. Eq. PI. by Jeremy, 174. 

• Pom, 4 149, 151. 



L. 



182 EQUIT¥ PLEADINGS. [CH. IV. 

where a Bill is brought for the due application or dis- 
tribution of a surplus to be paid after payment of debts 
and legacies, or other prior incumbrances, it is not 
necessary to make such prior creditors, legatees, or 
other incumbrancers, parties.^ It is for the like reason, 
that in a Bill by a bond creditor for satisfaction out 
of the assets of his deceased debtor, it is not neces- 
sary to make any other bond creditors, or creditors of 
a superior nature, parties to the suit ; for the decree 
of the Court will merely direct an account and pay- 
ment by the executor or administrator of the deceased 
in the course of administration ; and then the execu- 
tor or administrator may before the Master represent 
all debts, which are prior to the plaintiflPs debt, and 
have a legal preference.* Perhaps, in a case of this 
latter sort, it may be more correctly stated, that the 
executor or administrator is the trustee and proper rep- 
resentative of all the creditors, as well as of all other 
persons interested as legatees or distributees.^ 

^ 149. So, persons having demands prior to the 
creation of a trust may enforce those demands against 
the trustees, without brining before the Court the 
persons interested under the trust, if the absolute dis- 
position of the property is vested in the trustees.* But, 
if the trustees have no such power of disposition (as 
in the case of trustees to convey to certain uses), the 
persons claiming the benefit of the trust must be 



1 Mitf. Eq. PI. by Jeremy, 175 ; Parker v. Fuller, I Russ. d& Mylne, 
666 ; Lewis v. Lord Zouebe, 2 Sim. R. 388 ; Ante, ^ 140 ; Poet, ^ 150. 

9 Anon. 3 Atk. 572 ; Ante, ^ 100, note, 101. 

3 1 Eq. Abridg. 73 ; Anen. 1 Vem. 261 ; Brown r. Dowthwaite, 1 
Madd. R. 447 ; Ante, § 136, 140, 141 ; Dandndge V. Waebington, 8 
Peters, R. 377. 

* Mitf. Eq. PL by Jeremy, 176 ; Anon. I Vera. 261 ; Post, § 157, 207, 
215, 216. 



CH. IT.] PARTIES TO BILLS. 183 

made parties. In many other cases, persons, having 
specific charges on trust property, arc also necessary 
parties.^ Thus, for example, if an indenture of assign- 
ment should be made by a debtor, conveying all his 
property to such of his creditors as should execute the 
indenture within three months, and twenty only of his 
creditors should within the period execute the inden- 
ture ; and a suit should be brought by a judgment 
creditor to recover satisfaction out of the trust property, 
upon the ground of the priority of his judgment, all 
the creditors who had signed the instrument, their 
names being known, ought to be made parties ; and 
an allegation in the Bill of their being numerous would 
not be sufficient.^ But if there is a general trust for 
creditors or others, whose demands are not distinctly 
specified in the creation of the trust, inasmuch as their 
numbers, as well as the difficulty of ascertaining, 
who may answer the general description, might greatly 
embarrass a prior claim against the trust property, 
the Court will dispense with their being made par- 
ties." Where a trust is created for the Ix^uefit of 
certain specified creditors, and a suit is brought 
against the trustees for the execution of the trust, not 
only should those creditors generally be made par- 
ties, but the person, who created the trust also, or 
personal representatives.^ Some of the distinc- 



» Mitf. Eq. PI. by Jerrmy, 171 ; Post, ( 157, 163, 207, 215, 218. 

* Harriion v. Stcwardvon, 2 Hare, R. 530 ; Post, $ 150, 207, 215- 
SI7; Newton v. Karl of Effmoni, 4 Sim. R. 574 ; Kimber v. Knawurtli, 
1 Han, R. 293. 

• Mitf. Eq. PI. by Jeremy, 176, citing? Franco ». Franco, 3 Vc«. H. 
75; Curtis v. Candler, G Madd. U. 123; Ante, 4 76, c, noti*, 115, a; 
Poat, i 150, 157, 206, 207, 215-217: Wrathrrby v. St. Giorgio, 2 Hart*, 
R. 094,626; Hawkins v. Hawkins, 1 Hare, R. 540. 

4 Kimber V. Knsworth, 1 Hare, U. 203; Post, $207; Weaihcrby v. 
St. Gioffio, S Hare, R. 624, 026. 



184 EQUITY PLEADINGS. [CH. IT. 

tions, applicable to this subject, will appear more fiilly 
hereafter.^ 

^ 150. It has been laid down by Lord Redesdale 
as a general rule, that, where any persons are made 
trustees for the payment of debts and legacies, they 
may sustain a suit, either as plaintifi^ or as defendants, 
without bringing before the Court the creditors or 
legatees, for whom they are trustees, which, in many 
cases, would be impossible.^ And the rights of the 
creditors or legatees will be bound by the decision of 
the Court, when fairly obtained for or against the 
trustees.' In such cases, the trustees, like executors, 
are supposed to represent the interests of all persons, 
creditors, or legatees.* Indeed, the impracticability of 
making the other persons parties, would seem of itself 
a sufficient ground for dispensing with them.^ It has, 
however, been recently suggested, that the rule so laid 
down is too broad and comprehensive ; for it is said, 
that the almost universal rule is, to make legatees par- 
ties, whose legacies are charged on real estate ; and 
that one of the late orders of the Court of Chancery 
was intended to cure the difficulty.® 



I Post, §207, 215-217. 

« See Fenn v. Craig, 3 Younge & Coll. 216 ; Ante, § 143, 148; Port, 
§207. 

3 Mitf. Eq. PI. by Jeremy, 174 ; Wakeman v. Grove, 4 Paige, R. 23 ; 
Ante, § 115, a, 139-141, 149 ; Post, § 216. 

^ There is a difference between a trust by deed and a trust by will, for 
payment of debts, as to making the heir a party. In the former case (of 
deed) unless the heir is to have the surplus, he need not be made a party. 
But in case of a will, the heir is a necessary party to establish the will. 
— Harris v. Ingledew, 3 P. Will. 92. But see Post, § 163, and note. 

5 See Fenn v. Craig, 3 Younge & Coll. 216; Ante, § 115, a, 148, 149; 
Post, § 207, 216. 

^ Harrison v. Stewardson, 2 Hare, R. 530, 532, where Mr. Vice- 
Chancellor Wigram said : *' It is impossible to say, that the practice of 
the Court is in conformity with the passage, which has been cited from 
Lord Redesdale's Treatise ; for almost the pniveiBal rule is to make lega- 



CH. IV.] PARTIES TO BILLS. 185 

§ 151. In the next place, where there is a known 
interest, and yet it will not be liound or concluded by 
the decree, Courts of Equity will sometimes dispense 
with the persons, representing that interest, being 
made parties. It is upon this ground, or one of an 
analogous nature, that the occupying tenants or lessees, 
claiming possession under the party, against whom the 
Bill is brought, and whose title to the real property is 
disputed, are not deemc^d necessary parties. If, in- 
deed, he had a legal title, the title, which they may 
have gained from him, cannot be prejudiced ^ by any 
decision on his rights in a Court of Equity in their 



tees parties, whose legacies are charged on real estate. To relieve par- 
ties from this necessity in cases where trustees are fully empowered to 
■dainister wad distribute real estate, and to place such trustees in a posi- 
tion analogous to that of executors, is the purpose of the 30th Order of 
August, 1S41. In cases like the ]>resent, the general rule is, that all the 
pnaoDS interested in the estate shall be parties to the suit.** Hut see 
Batmi •. Barfitt, 2 Younge & Coll. New H. 313. See also Ante, § 140, 
141 ; Post, $ 163, and nuU\ 20<{, s>07, 215 ; Orders in Chancery of 1841, 
Orders 30tb and 3l8t, which are in the following words : " That in all 
salts coneeming real estate, which is vested in trustees by devise, and 
sucb trustees arc competent to sell and give discharges for the proceeds 
of the sale, and for the r<:nts and profits of the estate, such trustees shall 
reprcaeot the persons lienrficiaUy interested in the estate or the ])roceeds, 
or the rents and pnifits, in the same manner, and to the same extent, 
■■ the executors or administrators in suits concerning personal estate re]>- 
resent the persons lienefirially interested in such personal estate ; and in 
such cases it shall not be nercHsary to make the persons beneficially 
interested in such real estatf, or rents and profits, parties to the suit ; 
hot the Court may, upon consideration of the matter on the hcarin^r, if it 
abaU so think fit, order such persons to b«! made parties.** — ** That in 
suits to execute the trusts of a will, it shall not be necessary to make the 
heir at law a party ; but the plaintifT shall be at liberty to make the heir 
at law a party, where he drMres to have the will cstabliflhed against 
him.*' The Supreme (*ourt of the I'uited States have adopted the like 
ralee. See 40ih and 50th of the Ivpiity RuIi'h of the Supreme (*ourt of 
the United States, January Term, Itfltf. See also Telfair v. Stead *s 
Ex*ors, 9 Cranch, R. 407. 

1 Mitf. £q. PI. by Jeremy, 174, 175. Sec Lawley v. Walden, 3 
SwaMt. R. 148, note. 

EQ. PL. 24 



t86 EQUITY PLEADINGS. [CH. IT. 

absence.^ But if his title were merely equitable, they 
may be indirectly affected by a decision against that 
title ;^ and on this account it might seem fit, that 
their interests should be properly represented before 
the Court. But the rule seems established upon the 
ground, that their rights are in some sort represented, 
and so far protected, as not to be absolutely concluded 
in the suit. If, therefore, it is intended to condu^ 
their rights in the same suit, such tenants or lessees 
must be made parties to it.' And in order to ^ard 
against any injury to the rights of such tenants or 
lessees, if the existence of their right is suggested at 
the hearing, the Court will sometimes frame its decree 
expressly without prejudice to those rights, or other- 
wise qualify it according to circumstances.^ 

^ 152. Having made these preliminary explanations, 
in regard to the nature and character of the interests 
of persons, which entitle them to be deemed proper 
parties to the Bill before the Court, let us now pro- 
ceed to review some of the principal classes of cases, 
to which the rule has been applied, from which re- 
view its precise force and true bearing and objects 
may be more distinctly understood. 

§ 163. And, first, in cases of Assignments.* In gen- 
eral, the person having the legal title in the subject- 
matter of the Bill, must be a party (either as plaintiff, 
or as defendant), although he has no beneficial interest 
therein ; so that the legal right may be bound by the 
decree of the Court. In cases, therefore, where an 
assignment does not pass the legal title, but only the 
equitable title, to the property (as, for example, an 

1 Mitf. Eq. PI. by Jeremy, 174, 175 ; 1 Mont. Eq. PI. 64. 
9 Mitf. Eq. PI. by Jeremy, 174, 175. 3 Ibid. ♦ Ibid. 

^ See, on Ibis subject, Caltert on Parties, oh. 3, p. 239->848, and Ed- 
wards on Parties, p. 79-83. 



CH. IV.] PARTIES TO BILLS. 187 

assignment of a chose in action), it is usual, if it be 
not always indispensable, to make the assignor, liolding 
the legal title, a party to the suit.' Indeed, the rule 
is often laid down far * more broadly, and in terms im- 
porting, that the assignor, as the legal owner, must in 
all cases be made a party, where the equitable inter- 
est only is passed. Thus, it has been laid down in a 
book of very high authority, that if a bond or judgment 
be assigned, the assignor, as well as the assignee, must 
be a party; for the legal right remains in the as- 
signor.' But it may well be doubted, whether the 
doctrine thus stated is universally true.^ The true 



1 It has been held, by Mr. Chancellor Walworth, that the assi^rnec of 
B cfaoM in action, who is but a nominal owner, cannot sue in f'>]uity ; but 
Ihe suit must he bn)ught by the real party in interest. Ilo^urs v. The 
Traders' Insurance (Nimpany, 6 Paifrc, R. 597. See also Field 17. Ma- 
ghee, 5 Paifrc, R. 530. Hut sun'ly this requires some qusilificatiun in 
eMn, where, although the a.Hsii;iirc has hut a nominal interest, yet he is 
a trustee for the benefit of third fierwina upon sprcial trusts ; such, for 
esamplc, as an assij^nmrnt of a chose in action for the benefit of creditors 
genorally. On the other hand, it has been recently held by the A'ice- 
Chaaeellor in England, that the asiii>;nee of a chose in action (as of a debt) 
cannot, although the real owner thereof, sue in ]v<)uity then^fur, unless 
under special circuiristanccs ; such, for example, as where the :i.si»i)Tnor 
will not permit the assi^rnee to sue in his name at law. Messeufror v. 
HiauDood, The (English) Jurist, lH3i), vol. 1, p. OH ; S. C. Sin^ons, 
R. 3:17, 33d. This doctrine seems new ; fur the general underhtandiiig 
kaa always been, that where a party has an equitaldc ri^ht he may 
enforce it in a fVnirt of Ef|uity, and he is not driven Ui seek a circuitous 
iWBody at law, ihrouuh tlu; inMrumtmtaJity of ihinl persons. This cit- 
lainly is the well eHtablitthcil do<*trine in America. Infru, note to ^ 153, 
p. ISV; Pmit, ^'2iV,. 

* Mitf. Va{. pi. by Jert'iny, 170; Cathcart v. I^wis, 3 Hro. f'h. R. 
516; S. C. 1 Vim. jr. 163; Ray v. Fenwick, 3 Bru. Ch. R. ^25, and Mr. 
Belt*anot6(l). 

3 In BracT v. Harrington, 2 Atk. 235, liord Hardwicke said; ** It is 
■01 necessary, in every eaM' of aMJsi^nments, where all the equitable iiiter- 
ont is aasi|rne<l over, to make a |H.TMm, who has the legal interest, :i party. 
Bat if an obligee has asKi^ned a b«ind, and a presumption of Hn lienif; »at- 
iaied arises from the great length of time, the cause must stand over to 
make the representative of the obligee a party ; because it is possible the 



188 EQUITY PUSADINGS. [CH. IV. 

principle would seem to be, that, in all cases, where 
the assignment is absolute and unconditional, leaving 
no equitable interest whatever in the assignor, and the 
extent and validity of the assignment is not doubted 
or denied, and there is no remaining liability in the 
assignor to be aflfected by the decree, it is not neces- 
sary to make the latter a party. At most, he is merely 
a nominal or formal party in such a case. It is a very 
different question, whether he may not properly be 
made a party, as the legal owner, although no decree 
is sought against him ; for in many cases (as we shall 
see) a person may be made a party, although he is not 
an indispensable party .^ But, where the assignment is 
not absolute and unconditional, or the extent or validi- 
ty of the assignment is disputed or denied, or there are 
remaining rights or liabilities of the assignor, which 
may be affected by the decree, there he is not only a 
proper, but a necessary party. The general rule will 



obligee himself may have been paid, and therefore necessary to have an 
answer as to that particular from him or his representative." In Blake 
V. Jones, 3 Anst. R. 651, one of two residuary legatees assigned his 
share, and the assignee brought a Bill to have his half of the residue 
without making the representative of the assignor (who had since died) a 
party. Upon an objection, taken for want of the representative of |he 
assignor being a party, the Court said, that the Bill was well enongh 
without his being a party, unless where the validity of the assignment is 
denied, or there appears to the Court some doubt upon that head. The 
subject was elaborately considered, and the principal authorities examin- 
ed, in Trecothick v. Austin, 4 Mason, R. 41-44. The doctrine in the 
text has been confirmed in other cases. See Millar v. Bear, 3 Paige, R. 
467, 468, and Whitney v. McKinney, 7 John. Ch. R. 144, where many 
authorities in analogous cases are collected and reviewed. In Blain v. 
Agar, 1 Sim. R. 37, the assignors were not made parties ; but they had 
an interest in the suit, and had not parted with all title. In Macartney v. 
Graham, 2 Sim. R. 285, on a Bill by the last indorser to recover the 
amount of a lost bill of exchange against the acceptor, it was held, that 
the prior indorsers were not necessary to be made parties. 

1 Ibid. ; Ryan v. Anderson, 3 Madd. R. 174 ; Post, § 156, 167, note 
(4), 169, 178, 181, 189, 193, 194, 211, 213, 221. 



CH. IV.] PARTIES TO BILLS. 189 

hereafter occur under other aspects, where the legal 
estate is in one person, and the equitable estate is 
in another, and where the equitable or legal interest 
assigned still leaves some rights or claims to be settled, 
in which the presence of the assignor may be material 
to bis own interests, or to those of the adverse party.^ 

^ 154. But although the original assignor is not, or 
may not, under all circumstances, be a necessary party 
to a Bill to enforce the rights of the assignee under an 
equitable assignment ; yet it is generally, if not uni- 
versally true, that to a Bill to enforce or to set aside 
such rights, the assignee, as the person having the 
beneficial interest, is a necessary party ; and a Bill 
brought by and in the name of the assignor alone 



I In Mcsscnfrer r. TIainmoiid, in Knrrland, February, 1830 (The Eiig- 
iJBh Jurist for 1H39. A'ol. 1, p. 98), the V ice-Chancellor held, that an 
UMgnee of a chose in action could not sue in Equity, unless under spe- 
cial circuinstanccs. On that occasion he said ; ** As a (general proposi- 
tion, a person, who has a right to sue persons owing a debt, in the 
names of persons to whom the debt is due, that is, a person having a 
ngbt to sue D., in the name of A., for a debt due from D. to A., cannot file 
a Bill in this Court to recover such debt without special circumstances. 
If special cirumstances are stated, viz. that the creditor prevents such ritrht 
from being fairly exercised at law, then this Court has jurisdiction to 
make the debtor pay to the assignee the debt owed, where the act is done 
by the collusion between the debtor and creditor. I nevor reinomber 
such a Bill without special circumstances, and the question, therefi>rc, is, 
are there any special circuniManccs 8tate«l in this long record.'* ThJH is 
eertainly contrary to what has lieen the frenrral understanding in Amer- 
ica, where it has certainly Ik'i'H held, that every :Ls«ignre, who has an 
equitable assignment or right, may sue in his own name, and need not 
ue the name of his assignor either at I^w or in tlquity, and this without 
any special circumstancc^s whatsoever. Thus, in Field v. Mug bee, 5 
Paige, R. 53f), it was held by .Mr. (.'hancrllur Walworth, that thcabhipuec 
of a ehoee in action is not itermitted tf» file a Bill in flquity in the name 
of his aMignor, who is a mere nominal party ; but tho Bill bhould bo 
in his own name, that is, in the name of the n?al party in intereht. 
The Mme pomt was aJfiniied in Rogers v. The TPiiders* Insurance Com- 
pany, 6 Paige, 5h3, 5ilH. See also Harris v. Johnston, 3 (*ranoh, U. 
311, 319. See also Supra, note (3) of i 153, p. 187. 



190 EQUITY PLEADINGS. [CH. IF. 

would not be maintainable.^ This, however, is but an 
illustration of the ordinary doctrine, that the real par- 
ties in interest shall be brought before the Court, 
whenever their interests may be affected. 

^ 155. Where the assignor is a mere trustee for 
the benefit of a third person, upon a special trust, 
which he violates by the assignment of the property, 
if such third person should bring a Bill to enforce the 
trust against the assignee, the trustee, or his proper 
representatives, should be made parties ; for in such a 
case the proper decree would be to compel the as- 
signee to perform the trust, and the trustee to stand as 
a security for having broken the trust.* 

^ 156. Generally speaking, an assignee, pendente 
lite, need not be made a party to a Bill, or be brought 
before the Court; for every person, purchasing |7^n(i^n/e 
litej is treated as a purchaser with notice, and is subject 
to all the equities of the persons, under whom he 
claims in privity.* And it will make no difference 
whether the assignee pendente lite be the claimant of a 
legal or of an equitable interest, or whether he be the 
assignee of the plaintiffs or of the defendants.^ Still, 
however, it is often important to bring such assignees 
before the Court, as parties, by a supplementary Bill, 
in order to take away a cloud hanging over the title, 

1 Bromley v. Holland, 7 Ves. 2, 11, 12; S. C. Cooper, R. 9,19; 
Kirk V. Clark, Prec. Ch. 274; Burt ». Dennett, 2 Bro. Ch. R. 225; 
Foord V. Lear, Rep. Temp. Finch, 265 ; Movan v. Hayes, 1 Johns. Ch. 
R. 339; Sells v. HubbelPs Adm*r, 2 Johns. Ch. R. 394 ; Field v. Ma- 
ghee, 5 Paige, R. 539. Bat see Ante, § 153, note. 

s Burt V. Dennett, 2 Bro. Ch. R. 225. 

3 1 Story on Equity Jurisp. ^ 406 ; Cook v. Mancius, 5 Johns. Ch. R. 
93; Bishop of Winchester v. Paine, 11 Ves. 194-197 ; 2 Story on Equity 
Jurisp. § 908 ; Murray v. Barlow, 1 Johns. Ch. R. 577-581 ; Metcalfe 
V. PuWertoft, 2 Yes. & B. 204, 205 ; Post, ^ 342, 349-351 ; Eades v. 
Harris, 1 Y. & Coll. New R. 230 ; Hoxie v. Carr, 1 Sumner, R. 173. 

4 Eades v, Harris, 1 Younge & Coll. New R. 230. 



CH. IV.] PARTIES TO BILLS. 191 

or to compel the assignee to do some act, or to join in 
some conveyance. So that such assignee, although not 
a necessary party, may at the same time be a proper 
party at the election of the plaintiflf.^ 

^ 157. Where an assignment is made by a debtor 
for the benefit of his creditors, if any creditor seeks to 
enforce the trusts, he cannot sue alone ; but he must 
make all the other creditors, provided for in the assign- 
ment, parties, either by name, or by bringing the suit 
on behalf of himself and all the other creditors, who 
may choose to come in, and take the benefit of the 
decree.' But the assignees themselves may file a Bill 
relative to the trust estate, and to enforce its objects, 
without making the creditors parties ; for the assignees, 
in such a case, are the proper representatives of all of 
them.^ 

^ 158. It has l)een s<iid (as we have already scen^), 
that in some cases of assignment of this sort, where 
priorities are to be ascertained, which are asserted by 
incumbrancers, claiming paramount to, and not in vir- 
tue of the assignment, all the creditors, entitled under 
the assignment, should bi^ made parties by name to the 
suit, however numerous they may In;, since each is, or 
may be, interested in ascertaining or re[)eHing the pri- 
ority of the claims and charges of all others.^ Perhaps, 
upon principk, it is not easy to see, why it might not 



^ 9 Story on I*l(}iiity Jurisp. § DOrt, ami rases ciicd in note (/>) ; HiHliop 
of Winchestrr V. Paine, 11 Yes. 197; FxrhlitT ». HaMwin, Ifi Vt?». 2«7 ; 
Mechanics* Bank of Alexandria v. Setonn, 1 IVterH, K. 310 ; I'ust, § .Til. 
See Tureor v. Wright, 4 Beavan, R. 10 ; Hoxie v. Carr, 1 Sumner, 
R. 173. 

• Wakeman v. CIrovcr, 1 Paipr, R. 23 ; Ante, ^ 103 ; Hallrit r. Hal- 
Ictl, 9 Paiffi', R. 15; KgU-rts v. W«o<l, 3 Pai^e, R. 517; Wel.i v. lion- 
ham, 2 Sim. & Sill. Hi ; Antp, $ 14U ; Post, $ Si07, *J16. 

' Wakeman v. Urovcr, 4 Paige, R. S3 : Ante, $ 102, 103, 119. 

« Ante, t 101. ^ Ibid. ; Ante, § 133. 



192 EQUITY PLEADINGS. [CH. IV. 

be sufficient, in such a case, to file the Bill on behalf 
of all the creditors and incumbrancers ; thus making 
them all, in a sense, parties, to the extent of asserting 
their own rights, or of enabling them to contest the 
matter before a Master.^ And this latter doctrine 
seems to be the true one inculcated and supported by 
the more recent authorities.^ 

§ 158, a. Hitherto we have been speaking of as- 
signments made by the parties, and not by mere 
operation of law. But where a party becomes an insol- 
vent or a bankrupt, his assignees must be made parties 
in all cases where any interest in the property does or 
may vest in them. Thus, for example, the assignee 
of a bankrupt or insolvent is a necessary party to a 
Bill brought by the bankrupt or insolvent against an- 
other person for the delivery up of a bill of exchange 
which belonged to him, prior to his bankruptcy or in- 
solvency.' 

^ 159. Secondly, in cases of joint interests, joint 
obligations and contracts, and joint claims, duties, and 
liabilities.^ In cases of this sort, the general rule is, 
that all the joint owners, joint contractors, and other 
persons, having a community of interest in duties, 
claims, or liabilities, who may be affected by the de- 
cree, should be made parties. The rule, however, 
does not apply to cases of joint and several contracts ; 
for, in the latter cases, according to present practice, 
the Bill may be brought against one or more of the 



1 Newton v. Earl of Egmont, 4 Sim. R. 585; S. C. 5 Sim. R. 130 ; 
Burney v. Morgan, 1 Sim. & Stu. 358-362; Ante, § 103, 140, 143; 
Hallett V. Hallett, 2 Paige, R. 15. 

s Ante, § 101. But see Ante, § 133. 

3 Balls ». Storett, 1 Hare, R. 146. 

* See Edwards on Parties, p. 53-60 ; Post, ^ 169. 



CH. IV.] PARTIES TO BILLS. 193 

persons severally liable.^ But in other cases it still 
prevails. Hence it is, that one joint tenant cannot or- 
dinarily sue or be sued, witliout joining the other joint 
tenants.^ So, tenants in common must all sue and be 
sued in cases touching their common rights and inter- 
ests.^ Soy persons having a common interest in a trust 
fund in moieties, must join in a suit, where redress is 
sought on account of die fund having been improperly 
dealt with.^ So, where moneys have l)een borrowed 
by the trustees of a turnpike road, on the security of the 
tolls, of different persons, each to receive his pro}K)rtion 
of the tolls in proportion to the moneys advanced by 
him, all the creditors and mortgagees of the fund must 
be made parties to a Bill brought by one to have the 
arrears of the interest due to him paid out of the 
tolls.^ So, if A. be tenant for life or years, remainder 



I The 39d of tho Orders in Chancery of IRll, provides; '< That, in all 
in which the plaintiff has a Joint and several demand against several 
persons, either as principals or sureties, it shall not be necessary to brin^ 
before Uie Court, as parties to a suit concerning; such demand, all tlie 
penons liable thereto ; but the plaintiff may proceed against one or more 
of the persons severally liable/' 1 Craig & Phill. K. 377. The same 
rule has been adopted by the Supreme Court of the United States. Sec 
Rale 51 of the E«iuity Rules of the Supreme Court, January Term, 
1849. 

'Cooper, Eq. PI. 35; Weston «. Keighlcy, Rep. Temp. Finch, W. 

) See Fallowes v. Williamwm, 11 Vcs. 300, 300, 310 ; Couper, F^i. PI. 
^,86; Brooks V. Durt, 1 Heavan, R. 100. 

* Munch V. (*ockeriIl, H Sim. 2VJ. Sec also Walker v. Symonds, 
3 Swanst. R. I. 75. 

' Mellish V. Uro<iks, 3 Deavan, R. 2*2. In this case. Lord Lnngdalc 
•aid ; "As to the form of the suit, it is to lie observed, that the tolls, 
which ire collecti'd under the acts, arc the security to which the plaintiff, 
lod all other persons who have lent money on the credit (if the arts, arc 
entitled ; that the plaintitf is one of several, and is I'utitled to the benefit 
of only A share of the tolls, namely, a share bearing such proportion to 
the whole as the amount due to him U-ars to the aggregate amount of all 
the other sums borrowed on the credit of the tolls, and the ipicstion i.>«, 
whether the plaintiff, in the absence of the other mortgagees, can sue 
alone for hie share. Ht* asks to he paid what is due to him out of the 

EQ. PL. 25 



194 EQUITY PLEADINGS. [CH. IV. 

to B. for life, and remainder or reversion to C. in fee ; 
and waste be committed by A., a suit will not lie in 
Equity by B., to stay waste by A., without making C. 
a party ; for they have a community of interest in the 
suit.* But if the remainder be to the first and other 
sons of B. in fee tail, who are not in esscj remainder 
to C. in fee, B. may maintain a Bill for the waste ; 
making, however, the first person entitled to the inher- 
itance, C, if in esse, a party ; although if such sons 
were in esse, the first tenant in tail would be a neces- 
sary party, and the remainder-man, C, would not be 
a necessary party.* 

§ 160. In case of a contract for the sale of real 
estate, if the vendor should die, and a Bill is brought 
by his personal representatives for a specific perform- 
ance of the contract, all the heirs of the vendor ought 
to be made parties, either as plaintiffs, or as defendants, 
before a specific performance is decreed.* For the 
same reason, if the vendee should die, on a like Bill 
brought by the vendor or his personal representatives, 

moDeys received or to be received under the acts of Parliament, and that a 
receiver of the same may be appointed. But the other mortgagees are in- 
terested in those moneys, and the plaintiff cannot be paid in full without 
diminishing the fund out of which they are entitled to be paid; iind, under 
these circumstances, I am of opinion, that, in this form of suit, the plain- 
tiif is not entitled to the general relief which he prays, or to more than 
the defendants have, by their answer, offered to give him. The objection, 
however, is such, that it might have been taken by demurrer, and it does, 
in fact, amount to little more than an objection for want of parties ; and, 
under the circumstances, I have thought it right to consider, whether 
the plaintiff's claim to more than six years' arrear of interest is barred by 
the statute of limitations." 

1 MoUineaux ». Powell, 3 P. Will. 268, Cox's note (F). 

« Cooper, Eq. PI. 35, 36 ; Giffard r. Hort, 1 Sch. & Lefr. 407, 408 ; 
Dajrrell v. Champness, 1 Eq. Abridg. 400, pi. 4 ; Finch v. Finch, 1 Ves. 
492, 493. 

3 Morgan v. Morgan, 2 Wheat. R. 297, 298. See Calvert on Parties, 
ch. 3, § 3, p. 163-170 ; Edwards on Parties, p. 129 - 136 ; Post, § 177 ; 
Roberts v. Marchant, 1 Hare, R. 547. 



CH. IV.] PARTIES TO BILLS. 195 

for a siM^cific performance, the heirs (or devisees, if 
any) of the vendee, as well as his i)ersonaI represent- 
ative, should be made {)arties to the Bill.^ For, al- 
though the personal estate is primarily chargeable ; yet 
the real estate purchased belongs in Efpiity to the 
heirs or devisees, and will be chargeable with any 
deficit; and they are, tlierefore, [)roper parties to the 
account, and interested in the charge.^ The same rule 
will apply to tlie case, where a Bill in P^quity is brought 
by heirs at law to set aside a conveyance, made by 
their ancestor, for fraud and imjx)sition ; for no final 
decree will ordinarily be made, until all the heirs are 
made parties, or are before the Court.' 

§ 161. In each of tliese cases we perceive, that 
there is a community of interest in all the [Kirties, 
which may be affected by the decree ; and, therefore, 
all the proper representatives of that interest are re- 
quired to be before the Court.^ But if the character 
of the suit should involve no common right, title, or 
interest, to be affected by the decree, then all persons 
claiming in privity of estate are not necessary to Ikj 
made parties. Thus, for example, if there should l)e 
a lease for years, supposed to be limited to A. in fc^e 
tail, remainder to B. in fee ; and A. should contract to 
sell the estate to C, and then should bring a Bill 
against C. to enforce a six'cific |>erformance of the 
contract, he would not Im^ justified in making B. a 
party to the Bill, in order to discuss the ((uestion, 
whether he, A., had an est<Ue tail or not, and what 
would be the claim of the remainder-man, if be. A., 



> Townaend v. c:ain|H;nlown, 9 Price, R. 130; Post, $ 177. 
•Ibid. 

'llaHing v. Handy, 11 Wheal. H. 104. 

*«fae Cooper, Kq. P). 65; Anon. I Vci. jr. aO; Wood r. Duke of 
NoffthanlwrUiid, S Anat. 469. 



196 EQUITY PLEADmOS. [CH. IV. 

were to die without issue ; for no party plaintiff has a 
right to bring persons, in the situation of remainder- 
men, before the Court, in order to bind their rights, 
upon a discussion, whether a prior remainder-man had 
a title or not, merely to clear the plaintiff's title.^ So, 



1 DevoDsber v, Newenham, 2 Sch. & Lefr. 210, 211; Pelham v. 
Gregory, 1 Eden, R. 518 ; S. C. 5 Bro. Pari. R. 435 ; (3 Bro. Pari. 
Cas. 204, Tomlin's Edition). Upon the ground of a community of in- 
terests in the common objects of a Bill, Mr. Chancellor Kent has held, 
that where there are seyeral judgment creditors, claiming by several and 
distinct judgments, who seek the aid of a Court of Equity, to render 
their judgments available against certain illegal fraudulent acts of the 
judgment debtor, equally affecting them all, they might, to prevent mul- 
tiplicity of suits, unite in one Bill for themselves alone, and were not 
driven to mam tain separate Bills; and that the joint Bill, founded on such 
separate judgments, would not be demurrable for multifariousness. 
Brinckerhoff V. Brown, 6 John. Ch. R. 150, 151. See also S. P. Dix 
V. Briggs, 9 Paige, R. 595 ; Sizer v. Miller, 9 Paige, K 605 ; Poet, 
§ 286, 537, 537, a. But it may perhaps deserve consideration, whether a 
common interest merely in the result of a suit would justify such a Bill, 
since it would not involve any injury to any joint interest, and would not 
be for the common benefit of all creditors. Can several underwriters on 
the same policy maintain a joint Bill for a discovery of facts material to 
their several defences against the assured ? (See Post, § 537 and note, 
537, a.) The general doctrine is, that two or more separate creditors 
cannot, for themselves alone, maintain a joint suit for an account of assets 
against the executor or administrator ; but the suit in such a case must 
be for all the creditors, or a distinct suit by each several creditor. See 
Leigh V. Thomas, 2 Ves. 313 ; Brown v. Ricketts, 3 John. Ch. R. 555, 
556 ; Ante, § 100. In Birkley v. Presgrave, 1 East, R. 227, Lord Ken- 
yon said : — ** It is not competent, in general, to file a Bill, which will 
conclude the interests of persons not named. There are, indeed, some 
excepted cases to that rule ; as in the instance of creditors, one of whom 
may file a Bill for himself and the rest of the creditors, seeking an ac- 
count of the estate of their deceased debtor for payment of their demands. 
But, generally speaking, a Court of Equity will not take cognizance of 
distinct and separate claims of different persons in one suit, though stand- 
ing in the same relative situation. I have known the attempt sometimes 
made, where an estate has been contracted to be sold in parcels to many 
difi^erent persons, to file a Bill in the names of all of them to compel a 
specific performance; which has been constantly refused. Bills in 
Equity for a discovery, are, for the most part, auxiliary to proceedings in 
a Court of Law : and it does not follow, that a Court of Equity has juris- 
diction over the subject-matter, because it would compel a discovery. 



CB. !▼•] PARTIES TO BILLS. 197 

a party partially interested in an estate, as, for exam- 
ple, a tenant for life, may maintain a suit to set aside 
a conveyance of sucii interest fraudulently obtained 
from him without making the other persons interested 
in the estate parties ; for they have no concern what- 
ever in the conveyance.^ 

^ 162. The same principles a])ply to i)ersons, who 
arc aficcted by a common charge or burden ; for, or- 
dinarily, they must all be made parties, not only for 
the purpose of ascertaining and contesting the right or 
title to it ; but also for the purpose, if it should be es- 
tablished, of a contribution towards its discharge among 
themselves. Thus, for example (as we have already 
seen), where a rent charge, charged upon several 
estates, or upon one estate in the hands of dilFcrent 
tenants, is sought to be enforced in Equity, all the 
persons in interest, as owners, or tenants, or otherwise 
entitled, are required (subject to the cxce[)tioiis l)eforc 
stated) to be made jKirtics.' So, where a judgment is 

Sueh a proeeeding does not change the nature of the jurisdiction over the 
orifinal nutter. The ohjcction, therefore, arising Truni multiplicity of 
M of no weifcht in a case like the present. The saini; incon- 
would exist, if there were many persons owners of diflen-nt 
puts of a esrgo, and an injury were to happon to the whoUr fr(»m the 
■ueondnel of the captain. They must all brin^; their several actions for 
their respective losses, and no objection could be made to thiMr recovery.** 
Hs used the like illustration in Uayner v. Julian, t) Dick. 677. In j^cn- 
•ral, too, it may be statc-d, that iiermms, having entirely distinct :ind scp- 
■rala iDtereats, and not havinir any community or priority of ohIiL'atitm or 
daty, or connected in any wronir, are not to l»e ji»ined in a Bill sm dcfciid- 
anta, aaply because the plaintitf has a similar ri^ht or claim a>;:uiiht each 
of theok Many of the cases on this subject are reviewed in i\\o learned 
opiaioa of Chancellor Kent in the case in 6 John. Ch. H. l.V»: Post, 
f 986 and note, 2H7, a, 537 and note, 5.')7, a. 

1 Henley p. Stone, 3 Heavaii. K. 355 ; Post, § 1H5. 

* Ante, §93; Anon. Carey, K. 33; 1 Vd\. Abrid^'. 7'J ; Harris v. In- 
gledew, 3 P. Will. !I3-!M; Attoniey-Cieneral v. JackMMi, 11 Vch. :<(i7: 
Adair v. New Kivcr Company. 11 Ves. 441; Uenson v. Hahlwin, I 
Atk. 596. 



198 EQUITY PLEADINGS. [CH. lY. 

a lien upon different parcels of land, if the owner of 
one parcel seeks to exonerate the same, and to obtain 
contribution, he must make ail the owners of the other 
parcels parties ; for he is not entitled alone to an as- 
signment of the judgment, or to any contribution, 
without all the proper parties being before the Court.* 
§ 163. For the sajne reasons, where debts are 
charged on land by a will, in aid of the personal assets, 
if the charge is sought to be enforced by a sale, or oth- 
erwise against the land, the heirs or the devisees af- 
fected thereby, as well as the personal representatives, 
are ordinarily necessary parties.^ But it is otherwise 
where the real estate of the deceased party is by stat- 
ute made personal assets for the payment of his debts 
(as is the case of real estate in British India), for 
there it is unnecessary to make the heir or devisee of 
the estate a party to a suit for the administration of the 
assets.^ And since the English Statute of 3 and 4 

1 Avery v. Patten, 7 John. Ch. R. 211 ; Post, § 185. 

2 Berry v, Askham, 2 Vern. 26 ; Post, § 172 ; Brown v, Weatherby, 
10 Sim. R. 125 ; S. C. 12 Sim. R. 6, 11, 12 ; Post, ^ 176. 

3 Story V. Fry, 1 Younge & Coll. New R. 60. The same doctrine has 
been adopted by the Supreme Court of the United States in cases where, 
by the local law, lands are made liable for the payment of debts. See 
Telfair v. Stead's Ex'ors, 2 Cranch, 407, 418, and the Statute of 5 
Geo. II., ch. 7, ^ 4, making lands in the colonies chargeable with the 
debts of the party ; Post, § 172, 180; Goodchild o. Terrett, 5 Beavan, R. 
398. But see apparently contra. Brown v. Weatherby, 10 Sim. R. 125. 
In some of the American States (as in Massachusetts), a sale of the real 
assets may by statute be made for the payment of debts, by the execu- 
tor or administrator, by the authority of the proper Court of Probate or 
other Court of Law, upon the petition of the executor or administrator, and 
in such case the order is made without making the heir or devisee a party 
to the suit. Ex parte Rulluff, 1 Mass. R. 240 ; Lessee of Grignon v, 
J. J. Astor, 2 Howard, Sup. Ct. R. The general doctrine is also now 
modified in England, by the Orders in Chancery of 1841, cited Ante, 
§ 150, note, 1 Craig & Phill. 377. The like Rules have been adopted 
by the Supreme Court of the United States. See Rules 49th.aDd 50th of 
the Rules of the Supreme Court of the United States, January Term, 
1842. See also Ante, § 87, 150. 



CH. IV.] PARTIES TO BILLS. 199 

William IV., ch. 104, which makes the real estate of 
the deceased suhject to his debts, it does not seem 
necessary to make the heir a party to a creditor's Bill, 
in order to establish the will against the heir ; for in 
such a case the claim of the creditors against the real 
estate is paramount to the title both of the heir and 
the devisee.^ In such cases the real estate liecomes 
legal assets ; but the testator may nevertheless charge 
his real estate l)y devise with his debts, and then, it 
seems, they arc equitable assets.^ 

^ 164. So, on the other hand, where a Bill is filed 
to have the benefit of a charge on an estate, all |)er- 
sons must be made parties, who claim an interest in 
the charge.' On the same ground, where legacies are 
made chargeable on real estate, all the legatees, 
whose legacies are so charged, should be made parties 
to the Bill ; although, if their legacies had been jKiyable 
out of the personal estate only, all the legatees need 



> Goodchild r. Trrrrlt, 5 Doavan, R. 3«K». Tho Statute provii1rB» thai 
" When iny prreon Khali die seised of or entitled to any rstatr or iiiter«»sl 
in Imodt, tenements, or hereditaments, enriMtreal ur incoriiorral, or other 
remi estate, whether freehold, eustomaryhold, or copyhold, which he shall 
not by hit will have char)?ed with or devised suhject to the paynirnt of his 
debin, the same shall be assets to be administered in Courts of F«<iuity for 
the payment of the just debts of such persons, as well debts due on ^iInpIc 
mntraet as, on specialty ; and the heir at law, customary heir, or devisi-i.-s 
of sach debtor, shall lie liable to all the same suits in Kquity at the suit of 
any of the creditors of such debtor, whether creditors by Himph* contrnct 
or by specialty, as the heirs or dcviw;«'s of [H'rsons who died sfiKcd of 
freehoM estates were liable to in n^HjN'ct of such fn*ehold cMntrs at the 
suit of creditors by specialty in which the heirs wito bound : pro\idrd, 
tJMI, in the administration of the assets, all creditors by sprrialiy in 
which the heirs an* iKinnd. are to Ik? paid in full bcftire any en'ditors l>y 
sinple contract, or by specialty in which the heirs arc not bound, slcill l>e 
paid any part.** 

• Charlton v. Wriijht. V2 Sim. R 3Ti. 

' Newton r Karl of Kpmoni, 5 Sim. R. 1.10; S. i\ I Sim. U. >j ; 
Faithful V. Hunt, 3 Anst. R. 751 ; May i^. Selby, 1 Younge & ruli. New 
R. 935. 



200 EQUITY PLEADINGS. [CH. IV. 

not be made parties.* But persons, having a prior 
interest or incumbrance upon the property, are not ne- 
cessary parties to such a suit ; for their interests are 
not, and cannot be touched in the suit.^ 

§ 165. Upon similar grounds, where there are di- 
vers persons, having in succession an interest in par- 
ticular property, as A. for life, and B. in remainder, 
there, if a Bill be filed to transfer the property, or in 
any other manner to touch the rights or interests of all 
the parties, they must all be made parties to the Bill.^ 
But, as tenants for life may have, in certain cases, 
rights distinct from and unconnected with those in re- 
mainder, such, for example, as a right to a partition 
for life, a Bill to enforce any such rights may be main- 
tained without the remainder-man being made a party .^ 

^ 166. Upon similar grounds, in cases of persons, 
having a joint interest in personal estate, such as the 
part-owners of a ship, all the persons in interest must 
be made parties, either as plaintiffs, or as defendants, 
as the circumstances of the case may require.* Thus, 
if an account is sought of the earnings of a ship, all 
the part-owners must be made actual parties directly, 
and not by a Bill merely on behalf of all,® unless in- 



1 Morse v. Sadler, I Cox, R. 352 ; Faithful v. Hunt, 3 Anst. R. 751. 
In the case of Morse v. Sadler, the Bill was brought by one legatee on 
behalf of himself and all the legatees ; but it was held, that they must all 
be made actual parties, as the legacies were charged on land. 

a Parker v. Fuller, I Russ. & M. 656 ; Ante, § 149 ; Post, § 193. 

3 Sherrit v. Birch, 3 Bro. Ch. R. 229 ; Mitf. Eq. PI. by Jeremy, 173, 
174 ; Anon. 12 Mod. R. 560; Berry o. Askham, 2 Vem. 26; Bayley v. 
Best, 1 Russ. & M. 659 ; Post, ^ 185. 

^ Bearing o. Nash, 1 Ves. & Beam. 551. 

5 See Calvert on Parties, ch. 3, § 19, p. 260 -263. 

^ Mofiat V. Farquharson, 2 Bro. Ch. R. 338, and Mr. Belt's note ; Mas- 
sey V. Davis, 2 Ves. jr. 317 ; Ireton v. Lewis, Rep. Temp. Finch, 96 ; 
East India Co. v. Neave, 5 Ves. 172, 185 ; Perrott v, Bryant, 2 Younge 
& Coll. 61, 68. 



CH. IV.] PARTIES TO BILLS. 201 

deed, there should arise, which is rarely the case, the 
exception of numerousness.^ On the other hand, if 
two or more part-owners or others are liable to a de- 
mand, all the parties liable must be brought before the 
Court; and unless some clear exception to the rule 
exists, the suit cannot be proceeded in against one 
alone.* * 

^ 167. Upon similar grounds, wherever a suit is 
brought by or against })artners, all of them must be 
joined in tlie suit, cither as plaintiffs, or as defendants.^ 
And if one of the partners should die, and a remedy 
should be sought in Equity against his personal repre- 
sentative for the joint debt, the surviving partners 
should also be made parties ; for they have an interest 
to contest the debt, and a right to be heard in taking 
the account/ In the converse case of a suit in Eciui- 



1 Good V. Blewit, 13 Vcs. 307, 401. 

* Jackaon v. Rawlins, 2 Vern. 105; Picrson v. Robinson, 3 Swanst. 
R. 139, note ; Cowslad v, Cely, Prcc. Ch. 83 ; Weymouth v. Hover, 1 
Yd. jr. 416, 422. So, in a Bill for a specific performance of a contract 
reapeciing Imda (as wc shall presently see), the only proiier or necessary 
parties are ordinarily the vendor and vendee. Post, ^ 22<i, //. 

' Mofiat V. Farquharson, 2 Dn). Ch. R. 33H; Ircton o. I^cwis, Hep. 
Temp. Fioch, 90 ; Picrson v. Robinson, 3 Swanst. 139; Weymouth v. 
Boyer, I Vea. jr. 4 17. If a necessary party viill not consent to be mudi; 
m plaintiir, thoagh his interest b on the same side as that of the plaintiff, 
he may be made a defendant. Fallowes v. Williamson, 11 Ves. 313; 
Leigh V. Thomas, 2 Ves. 312, 313. There is an exception in the ciise of 
a aait brought against a partnership, where there is a dormant partnttr ; 
for the plaintiff has his election to niakr him a party or not. liawlcy v. 
Warner, 4 Cowcn, R. 717 ; Kx parte Hod^kinson, Cooper, ¥a{. PI. tH), 
101 ; Ez parte Norfolk. 10 Ves. 457 ; Kx parte I^ayton, G Ves. 13H ; Kx 
parte Hamper, 17 Ves. 401. It seems also, that in a suit, brout^ht by 
partaeiB, a dormant partner nerd not join, if the defendant has bi>en con- 
traeted with by the OAtenMblr partners only. But the authorities are not 
elear to the point. Sec (Ndlycr un Partnership, ch. 5, ^ 1, art. 4, p. 
399, and eaacs there cited. (*alvrrt on Parties, ch. 3, § 15, p. 2fi0 - *JC3 ; 
Bdwanb oo Parties, 52-50. 

4 Wilkioaun v. Henderson, 1 Mylne & K. 5h2, 5h8; Brown v. Weath- 
eiby, 19 Sim. 0, 0, 10 ; Holland v. Prior, I Mylnr h K. 237, 210 ; !)«:- 

KQ. PL. 26 



202 EQUITY PLEADINGS. [CH. IT. 

ty, brought against the surviving partners, to receive 
pa^nnent out of the partnership effects, it seems, that 
the same rule would for the same reason prevail.^ 

167, a. The same rule will apply to a case, where 
a creditor, who is a creditor of a partnership of seven 
persons, and is also a creditor of a separate partner- 
ship of two of those seven, files his Bill against the 
personal representatives and devisees of two of the 
deceased partners (one belonging to each firm), and 
against the assignees of the surviving partners, alleging 
that the joint estate is insufficient to pay the joint 
debts, and praying payment out of the real and per- 
sonal assets of the deceased partners ; for the Bill is 
not multifarious, and will be sustained.^ 

vaynes v. Noble, Sleech's case, I Meriv. R. 539-572; Pieison o. Robin- 
son, 3 Swanst. R. 139. See also Bowsher v. Watkins, 1 Russ. & Myl- 
ne, 277 ; Scholefield v. Healhfield, 7 Sim. 667 ; Davies v, Davies, 2 
Keen, R. 534 ; Butts t;. Genung, 5 Paige, R. 254 ; Thorp o. Jackson, 2 
Yoange & Coll. 553 ; Post, § 178 and note. See, in 2 Keen, R. 752, the 
form of a decree to take an account of a deceased partner's interest, 
where, since his death, new partners have been admitted. 

1 There does not seem to be any case directly deciding this point ; bat 
the analogous case of joint obligors, in ^ 169, is in its favor. Another ques- 
tion may arise, whether the suryiving partners, suing in £k)uity for a part- 
nership debt or claim, are bound to join the personal representative of the 
deceased. See § 168, note. 

3 Brown v. Weatherby, 12 Sim. R. 6. In this case, Sir L. Shad well 
said ; *' Here a creditor of the partnership of the seven, who is also a creditor 
of the partnership of the two (those two being two of the seven), has filed 
his Bill against the personal representatives and devisees of the two de- 
ceased partners, and the assignees of the surviving partners, alleging that 
the joint estate is insufficient to pay the joint debts. Taking that to be 
the case, the plaintiff, who represents the joint creditors, has a right to 
have the surplus of the separate estate of each of the deceased partners, 
which may remain afler payment of their separate debts, applied to pay 
such part of the partnership debts, as the joint estate may not be sufficient 
to satisfy. Now it seems to me, that for the purpose of ascertaining 
what is the surplus of the separate estate of A., one of the deceased 
partners, the suit must be conducted in such a manner as that the persons 
interested in the separate estate of B., the other deceased partner, shall 
know what is the true surplus. Because it is of very little use to have 



CH. IV.] PARTIES TO BILLS. 203 

^ 168. In relation, however, to the case of ])art- 
owners and others, engaged in a common adventure, 
in order to ascertain, whether tliey are all to be joined 
in the suit, we are to see, not only whether there is a 
joint adventure, but whether all the profits and losses 
are to be borne and taken by all in certain agreed 
proportions ; or, whether some are to share a propor- 
tion, only as a mode of {)ayment of wages. In the 
latter case, such sharers need not be made parties ; in 
the former case, they must all be made parties, or the 
Bill be filed on behalf of all. Thus, where there were 
a number of fishing boats employed in a pirticular 
fishery, and the adventurers consisted of the owners of 
the boat, the owners of the nets, and the crew of the 
boat, among whom the proceeds of each lx)at were 
arbitrarily divided, according to a jmrticular agree- 
ment, thus sharing the profits and losses of the adven- 

a rail in order to ascertain what is tlie surplus of tlie separate estate uf 
A., eonducled in such a inaiincr as not to hind thuso who arc interested 
in the separate estate of 1). And it appears to nic that, inasmuch as if 
thoae intereeted in the surplus of the separate estate of B., are not pro- 
■ent in a suit which is instituted for the purpost; of ascertaining what is 
the rarplos of the separate estate of A., as against the jM^rsons interested 
in the surplus of the separate estate of B., nothing is done. Because, 
if you filed a separate Bill for the puri>o8e of ascertaining what was the 
Mrplna of the separate estate of JS., you would have to do alt over 
Bffnin, in that suit, that which was before done in the suit filed for tlie pur- 
poee of ascertaining what was the surplus of the separate estate of A. : 
and I apprehend that it was uiM)n that principle that Sir John Ix*ach decided 
in tho case of Wilkinson v. Hend«:niun. And though I admit that there 
ma J he aomc inconvenience resulting from making all the parties in- 
iM M led in the different separate estates, parties to the same suit ; yet 1 
am tu from thinking that all inconvenience is avoided by instituting sepa- 
rate raito against the parties interested in the several separate estates. 
The reault of which would In> that you would have, as against the parties 
int ei e alcid in each uf the separate estates, u> make out that you have duly 
adnioblered the separate estate of every other partner. So that, as it ap- 
pears to me, unless you du it all at unee by one suit, you may have to do, 
fear or five times over, that which you have done ouce already.** Seu 
abo Brown f. Douglass, 11 8im. K. *^3. 



204 EQUITY PLEADINGS. [CH. IV. 

ture ; it was held, that all of the adventurers ought 
to be parties to a Bill affecting the common interest.* 
But, in the like case, if the crew were not jointly in- 
terested in the profits and losses, but were to receive 
a certain proportion in lieu of wages, or as a mode 
of calculating wages, they would not be necessary 
parties.^ 

^ 169. Upon similar grounds, in cases of joint bonds 
or obligations, all the parties, obligors, and obligees, 
are required to be made parties to the suit.^ It has 
been said, that, in regard to the obligors, this is only 
a rule of convenience, and to save those, who are 
severally charged, the trouble of a new suit for a con- 
tribution against those, who are not charged, and not 
a rule of necessity ; and therefore it may be dispensed 
with in certain cases.* This is true. But, then, the 
exceptions all stand upon special grounds ; and the 
rule is now firmly established, as one of general obli- 
gation, in this as well as in all other classes of cases. 
It has even been pressed to the extent of declaring, 
that where the bond is several, as well as joint, all the 
obligors, whether principals or sureties, must be made 
parties, to avoid circuity of action, because they are 
not only entided to contribution, but also because they 
are entitled to have the assistance of each other, in 



^ Coppard v. Page, 1 Forrest, R. 1 ; S. C. 2 Younge & Coll. 68. 

a Perrolt v, Bryant, 2 Younge & Coll. 61, 66, 68. In Scholefield v. 
Heathfield, 7 Sim. R. 667, the Vice-Chancellor said ; ** I can understand, 
in a general case, that there may be a suit hy the surviving partners in a 
firm, which comprehended A., against the surviving partners in another 
firm, which also comprehended A., without making the several representa- 
tives of A., a party." Post, ^ 178. 

3 Anon. 2 Freem. R. 127; Cockbumi;. Thompson, 16 Yes. 326 ; Ma- 
dox V. Jackson, 3 Atk. 406 ; Ante, ^ 159 ; Edwards on Parties, 99 - 102 ; 
Calvert on Parties, ch. 3, § 14, p. 235-239. 

^ Cranborne v. Crispe, Rep. Temp. Finch, 105. 



CH. IV.] PARTIES TO BILLS. 205 

taking the account of what remains due on ihc; bond.^ 
The same rule is also applied, where one of the obli- 
gors is dead; for in such a case his personal reprc- 
sentauve, as well as the survivors, must be made par- 
ties to a suit in Equity, brought for payment of iho 
debt, whether it be for payment by the survivors alone, 
or out of the assets of the deceased.^ In cases also, 
where a suit is brought against a surety, founded U{X)u 
a Bill, alleging that the principal has been released 
with the consent of the surety, and praying })ayment 
of the surety, the principal must be made a party ; for 
perhaps he may be liable to contribute to relieve the 
surety.' There are, however, exceptions to the general 
rule standing upon peculiar grounds. Thus, if, in the 
case of a joint and several lx)nd, one of the obligors 
(either a principal, or a surety) is insolvent, he need 
not be made a party .^ So, if the suit is against the 
principal alone, without the sureties, the latter being 
insolvent, or not having paid any thing, and the liill 
of the plaintiflf seeks nothing, except against the jirinci- 
pal, the Bill is maintainable, although the sureties 



> Madoz V. Jackson, 3 Atk. 100 ; Angcratciii v. Clarke, 'J Dick. 738 ; 
S. C. 3 Swanst. 147, note ; Cockbum v. Thompson, 10 Vi>8. :\\iO ; Jilaml 
V. Winter, 1 Sim. A: Stu. 216. l^ird Kiiiff, in Collins t;. GriiFith, 2 P. 
WilL 313, held otherwise, in the case of a joint and several hond, ui>on 
nMBOning, which it seems diflirult satiHfactorily to answer. The same 
point seems to have htten held in Stanley 0. Stock, Mosely's H. 3^3, and 
in Eq. Abrid^. il3, K. (I). This di>ctrine, however, has Inhmi overrnh'd 
in the later cases. See Madux v. J:irki»on, 3 Atk. 100; An^prMein v. 
f'larke, 3 Dick. K. 73H; C<ickburn v. Thompson, 10 Vls. 3:;0; Hland v. 
Winter, 1 Sim. & Stu. 240. 

* Madoz V. Jacksun, 3 Atk. 4(M> ; Angenttpin r. Clarke, 2 Dick. 73H ; 
Blaad V. Winter, I Sim. A£ Stu. 210. 

' Brooks V. Stuan, 1 Hravan. H. 512, 511). 

* Cockburn i^. Thomi>»un, 10 Ven. 320; Madox t;. Jurk>on. 3 Atk. 
406 ; Angerstein v. Clarke, 3 Swanst. K. 147, note ; S. C. 2 Dick. 
71 



206 EQUITY PLEADmCS. [CH. IV. 

mighty if the plaintiff had so elected, have properly 
been made parties.* 

^ 170. Thirdly, in cases of Administration. In gen- 
eral it may be stated, that wherever the personal 
assets of the deceased in the hands of his executors 
or administrators, or belonging to them, may be af- 
fected by the decree, they should be made parties.* 
Therefore, where a claim to the property in dispute 
would vest in the personal representative of a deceased 
person, such representative should be made a party. 
So, where there is a trust term vested in executors or 
administrators, and it is required to be assigned, they 
should be made parties. If, in such cases, there is no 
general personal representative of the deceased, an ad- 
ministration will nevertheless be necessary ; although, 
where it can, by the local law, be so, it may be limited 
to the particular subject-matter of the suit.^ In some 
cases, indeed, where it has appeared at the hearing, 
that the personal representative of the deceased was 
not a party to the suit, but ought to be so in the 
ulterior proceedings, the Court has directed, that the 
representative should be brought in, and heard in the 
proceedings before the Master, without requiring the 
representative to be made a party by the Bill, or other- 



1 Cockburn o. Thompson, 16 Ves. 326; Madox v, Jackson, 3 Atk. 
406 ; Haywood v. Ovey, 6 Madd. R. 113 ; Angerstein v. Clarke, 3 Swanst. 
147, note; S. C. 2 Dick. 738. The case of Chaplin v. Cooper, 1 Ves. 
& Beam. 16, has been thought to justify the conclusion, that, in case of 
a joint bond by a principal and surety, a Bill may be filed by the principal . 
alone, without the surety, to restrain the creditor from proceeding at law 
to enforce a joint judgment on the bond. I do not understand, that, upon 
its actual circumstances, it justifies any such conclusion. 

» Humphreys v. Humphreys, 3 P. Will. 349 ; Lane v, Fawlie, 2 Madd. 
R. 101 ; Post, ^ 214; Calvert on Parties, ch. 3, § 2, p. 139-161 ; Ed- 
wards on Parties, 107- 128. 

3 Mitf. Eq. PI. by Jeremy, 178 ; Fordham ». Rolfe, I Tamlyn, R. I. 



CH. IV.] PARTIES TO BILLS. 207 

wise. In such a case, he is considered as a party in 
the subsequent proceedings.^ 

^ 171. So, in all cases, where a suit is instituted 
respecting the trusts, actual or constructive, of a will, 
afiecting the personalty, as for the payment of a lega- 
cy, or an annuity, or for marshalling assets, or for the 
payment of debts, or for the distribution of the resi- 
due, the executor or administrator must l)e made a 
party.' Even the insolvency of the executor or ad- 
ministrator will not, in such a case, be an excuse for 
not making him a party, since the Bill necessarily 
seeks a discovery of the assets.^ 

^ 172. There are also a variety of cases, in which 
the executor or administrator (as well as the heir or 
devisee) must lie made a party to a Bill, seeking xhv 
enforcement of debts against the real estate, which an; 
properly and primarily chargeable upon the ])ersoiial 
assets, but which are also chargeable upon the real 
estate.* Thus, for example, where a testator charges 



' Mitf. Bq. PI. by Jeremy, 177, 178; Ante, ^ 100, note. In some 
it may be pro|»er, even if not indispensable, to join tlie personal 
repreflcotatife of the former representative of a deceased |N'r»on as a co- 
defendant. As. for example, in a suit by a creditor against the prrsrnt 
penonal fcpresentative of the deceased, the former representative, who 
has reeciTcd assets, may be made a party. This subject is very Inrjrfly 
diarumed in Holland v. Trior, 1 Mylnc 6l K. 239-318. Sec Williams 
V. Willianis, Mod. R. 290. 

s Cooper, F^. PI. 31 ; Ante, § 110, Ml, 119 ; Post, § 211. It seems, 
that erery Bill, brought to obtain the l>enefit of an interest accruing by 
inteslary in the freneral assets, must not only make the prrsonal ro]ir«'- 
aeniaiiTe a party, but it must further rharj^e, that there is a surjdiiN In^- 
loagtBg to the plaintiff af\er the discharge of all his debts and all iiicum- 
bnuieea; otherwuie it will be bad on demurrer. Stephens r. Frost, 2 
Yoange & Coll. 21i7. 

> Cooper, Kq. PI. 31. 35; Ashurst ». Kyre, 2 Atk. 51 ; S. C. 3 Alk. 
341; AntP. $ 140. Ml. ll!i. 

< Mitf. Kq. PI. by Jeremy. 176 ; Hrown v. Wcatherby, 1" Sim. 12.'* ; 
Cahert on Parties, ch. 3. ^2. p. 139-101; Id. $ 3, p. 102-170; VA- 
vaida on Parties, 107-128; Id. 129-130. But see Coodrhild r. Ter- 



208 EQUITY PLEADINGS. [CH. IV. 

his real, as well as personal, estate with the payment of 
his debts; inasmuch as the personalty is by the known 
rules of law first chargeable with these debts, and the 
real estate is only an auxiliary fund, the executor or 
administrator (as well as the heir or devisee) is an in- 
dispensable party, not only to take an account of the 
assets, and to disclose, whether there is any deficiency 
(for an averment to that effect in the Bill will not be 
sufficient) ; but also to make the decree attach primarily 
to the personal assets, and secondarily only to the real 
estate.* 

^ 173. It is upon the same ground, that where an 
obligor, or covenantor, has, by his bond or covenant, 
bound his heirs to the performance of the obligation or 
covenant, if he should die, and a suit should be brought 
to enforce the obligation or covenant in Equity against 
the heir; in such a case the executor or administrator 
would be a necessary party, although it would be other- 
wise at law; for the natural fimd for the payment of 
debts is the personal estate, and this ought first to go 
in ease of the land.^ 

^ 174. In support of this doctrine it has been said, 
that a Court of Equity delights to do complete justice, 
and not by halves ; as first to decree the heir to perform 
the covenant, or to pay the bond, and then to put the 
heir upon another Bill against the executor or admin- 
istrator, to reimburse himself out of the personal assets, 
which, for aught that appears, may be more than suffi- 



rett, 5 Beavan, R. 398 ; Ante, ^ 150 and note, 163 and note ; Post, 
§ 180. 

1 Fordham v. Rolfe, I Tamlyn, I ; Mitf. Eq. PL by Jeremy, 176, 177; 
Harris v, Ingledew, 3 P. Will. 92, 94, 98 ; Berry v. Askham, 2 Vern. 26. 
See Madox v. Jackson, 3 Atk. 406, 407 ; Ante, § 163 ; Post, § 176, 180. 

a Knight t^. Knight, 3 P. Will. 333 ; Cooper, Eq. PI. 38, 39 ; Plunket 
V. Penson, 2 Atk. 51 ; Madox v. Jackson, 3 Atk. 406 ; 1 Story on Eq. 
Jurisp. § 571, 573 ; Galton v. Hancock, 2 Atk. 432, 434, 435. 



'. ~ ''is- 



.iSiMM 



CH. IV.] PARTIES TO BILLS. 209 

cicnt to answer the demand.^ But, where the execu- 
tor or administrator and heir are both brought before 
the Court, complete justice may be done, by decreeing 
the executor or administrator to perform the covenant, 
or to pay the bond, as far as the personal estate will 
extend ; the rest to be made good by the heir, out of 
the real assets.' 

^ 175. Notwithstanding the apparent reasonable- 
ness of this doctrine, it is not a litde remarkable, that 
Courts of Equity have refused to act uix)n it, where a 
mortgagee brings a Bill to foreclose the mortgage 
against the heir of the mortgagor; for in such a case, 
it has been held, that although the mortgage is pri- 
marily a debt, charged u}X)n the {)ersonal assets, yet it 
is not necessary to make the personal representative of 
the mortgagor a party. For it is said, that the mort- 
gagee is not in any ways lx)und to intermeddle with 
the personal estate, or to run into an account thc^reof ; 
and, if the heir would have the Ix^nefit of having the 
personal estate applied in exoneration of the real, he 
must enforce that right by filing a Bill.^ 

§ 176. U{X)n the same ground of bringing in the 
|Kirty» who is primarily liable for the debt, in aid of 
him, who is only secondarily liable, and thus, without 
further litigation, of accomplishing in one suit compK^te 



> Knight «. Kniiiht. 3 V. Will. 333. 

> Knight V. Kni^lit, 3 P. Will. 333 ; C;:iltnn r. Hanccxk, H Atk. •13ri ; 
Midoz V. Jicksim, 3 Atk. iOO ; (;nop(T, Va\. PI. 3H, 31). Then; is an 
exception, if the (>crMiiial rppicBeiitation is in rnntnivfrsy in tho IWli^i- 
aatieil Court; for in such caM?, the rcprrscntative being inailo a p.iriy 
wiU bedisppowd with, at least, wh«*re tlir Hill in for diiMrov«rry. in nrdcr 
to pieterro the debt. IMunket v. IVn.son, '2 Atk. 51 ; Anio, <J 01 ; Hrad- 
■haw V. Outram, 13 Vca. *J3i ; Daniel v. Skipwith, 2 Uro. <;h. K. I5:i, 
Mr. Belt*s note. 

> Duncombu v. HanMey. rited 3 P. Will. 333, Mr. Cox's note (A) ; 
Cooper, ¥41. ^1- ^^- ^*^^ ^*»^^* i 1^'n 1**^** * Talvert un Parties, eh. 3, 
f 3, p. 167, lfVi4. 

EQ. PL. 27 



210 EQUITY PLEADINGS. [CH. IV. 

justice between all the parties, if a Bill in Equity seeks 
satisfaction of a debt due by a covenant or obligation, 
binding the heir of the debtor, out of real assets devis- 
ed by the debtor to a devisee, the heir of the debtor, 
and also his personal representative, as well as the dev- 
isee must ordinarily be made a party ; for if any assets 
have descended to the heir, they are first applicable to 
the discharge of the covenant or obligation, unless the 
assets devised are charged with debts in exoneration 
of the heir.^ So, where a testator has devised his lands, 
and has subjected the timber growing thereon to his 
debts, it seems, that the devisee, as well as the personal 
representative, should for the same reason be made a 
party to a Bill by a creditor, to recover his debt.^ In- 
deed, it has been said to be a general rule, that wher- 
ever a suit is brouglit for the administration of the real 
assets of a testator, the heir, as well as the devisee, and 

1 Milf. Eq. PI. by Jeremy, 176 ; Cooper, Eq. PI. 38 ; Gawler r. Wade, 

1 P. Will. 99, 100 ; Warren v. Stawell, 2 Alk. 125 ; Gallon v. Hancock, 

2 Atk. 432 -438; Brown v. Weatherby, 10 Sim. R. 125 ; S. C. 12 Sim. 
R. 6, 11, 12. Lands in the hands of the devisee are made liable to the 
specialty debts of the testator by the statute of 3 and 4 Will. & Mary, 
ch. 14 ; and the statute authorizes an action Jointly against the heir and 
devisee on such specialties. By analogy to the proceedings at Law, 
Courts of Equity seem to have required the heir and devisee to be joined 
in suits in Equity to enforce such specialties. Gawler v. Wade, 1 P. 
Will. 100 ; Warren v, Stawell, 2 Atk. 125 ; Gallon v. Hancock, 2 Atk. 
432, 433. Why, on the general principles stated in Knight v. Knight, 

3 P. Will. 333, the heir at law, as the party primarily bound to pay the 
debt, if he has real assets, as between himself and the devisee, might not 
be made a party, it is not easy to say. See Gallon v. Hancock, 2 Atk. 
432 - 438. 

2 Wiser v, Blackley, 1 John. Ch. R. 437. There could be no doubt 
in the common case of a Bill brought against the devisee, to have the 
timber applied to the payment of his debts. The only doubt seemed to 
be, whether, in a suit against the executor, the devisee was a necessary 
party, though he might be properly joined, if a deficiency of assets waa 
suggested. The learned Judge simply expressed the inclination of his 
opinion in the case, which was acquiesced in. Ante, § 163 ; Post, 
§ 180. 



CH. IV.] PARTIES TO BILLS. 211 

the personal representatives, arc necessary |)arties.* 
But it may well be doubted, whether such a general 
rule prevails either in Knp:land or America.^ 

^ 177. The same doctrine is applicable to the case 
of a contract for the purchase of lands, where eithiT of 
the orifl:inal parties dies Ix^fore the contract is complet- 
ed. If a Bill is brought by the vendor, to coni])el a 
specific {lerformance of the contract, the ])urchaser 
being dead, the {)ersonal representative of the ])urchas- 
er is a necessiiry party; l)ecause the jiersonal assets 
are primarily liable for the debt.' If the Bill further 
seeks to enforce the lien for the purchase money on the 
land itself, the heirs of the purchaser, if it is intestate 
estate, and the devisees, if it is devised, are necessary 
parties, and the personal representative also; for the 
heirs or devisees arc entitled to relief over, and to in- 
demnity from the |)crsonal assets.^ On the other hand, 
if the purchaser should die, and a specific [MTformance 
should be sought against the vendor by the heirs of the 
purchaser, who are trt*ated in Equity as entith^d to the 
lienefit of the purchase, it would be necessary to make 
the personal representative also of the purchaser a 
party; for the heirs are entitled to have the contract 
primarily paid or discharged out of the ]>ersonal assets.* 

^ 177, a. In like manner, if the vendor should die, 
and his |H*rsonal representative should seek a specific 
performance against the purchaser, the heir or devisee 
of the vendor should also hr uiadc^ a party to the Bill; 



« Brown •. WpaihfThy. 10 Sim. R. 1L»:.; S. <:. 1-J Sim. R. fi, II, V2, 
.%nte, ^ lAH; iNiiit, f IN). 

■ See Anir. { iri3 ; Sinry r. Fry, 1 Vimnjje & Coll. New R. 003 ; 
Telfur V. StcadV Kx'om, 2 Vranrh.' R. HC, 41h. 

' Townnend r. ('hamiM-riinwiif., M Friw. 13<»; Aiilc, § 100, 17*2, 177, a. 

« Smith r. Hibbanl. -J Dirk. 730 ; TuwnHCiid V. ChamiHriioMiic, « 
Priee, 130 ; Anu>, f UHi. 

• Chuipion V. Brown, A John. Ch. R. H>2 ; Auto, $ IHO. 



212 EQUITY PLEADINGS. [CH. IV. 

for he alone is competent to convey the legal title to 
the estate to the purchaser ; and the latter has a right 
to know, whether there is any sound objection, which 
the heir or devisee can raise against the contract.* 

§ 178. And not only are the personal representatives 
of the deceased proper parties in cases of administra- 
tion, where the personal assets are concerned ; but 
third persons, who may have possession of such assets, 
or may be liable to account therefor, may also, under 
particular circumstances (but not otherwise), be joined 
as parties in such a Bill.^ Thus, for example, if there 
are persons, who have possessed themselves of the 
estate of the deceased, or are his debtors, and there is 
collusion between them and the personal representa- 
tives, or the latter are insolvent, a creditor, or a lega- 
tee, or a distributee, may make such third persons 
parties to a Bill against such personal representatives.^ 
So, if the executor or administrator refuse to collect an 
outstanding debt or fund belonging to the assets, the 
case falls within the like predicament.* So, in cases 
of partnership, if the survivors become insolvent, a 
creditor may maintain a Bill against the personal rep- 
resentative of a deceased partner, and join the surviv- 
ors as parties in the Bill.* So, a residuary legatee, in 

1 Roberts v, Marchant, 1 Hare, R. 547. 

8 See Holland v. Prior, 1 Mylne & K. 240-244 ; Beckley v. Dorring- 
ton, West, R. 169 ; Doran r. Simpson, 4 Ves. 665 ; Long ». Majestre, I 
John. Ch. R. 305 ; Post, ^ 514 ; Pearse v. Hewitt, 7 Sim. 247 ; Lancas- 
ter V. Evors, 4 Beavan, R. 158. 

3 Newland v. Champion, 1 Ves. 105, 106 ; Doran v, Simpson, 4 Ves. 
651 ; Alsager v. Rowley, 6 Ves. 748 ; Beckley v. Dorrington, West, R. 
169, cited 6 Ves. 749 ; Burroughs v. Elton, 11 Ves. 28, 35; Gedge v. 
Traill, 1 Russ. & Mylne, 281, note; Holland v. Prior, 1 Mylne & K. 
239-248 ; Wilson v. Moore, 1 Mylne & K. 142 ; Post, ^ 227, 514 ; Lan- 
caster v. Evors, 4 Beavan, R. 158. 

4 Lancaster v. Evors, 4 Beavan, R. 158. 

5 Newland v. Champion, 1 Ves. 105, 106; Holland v. Prior, 1 Mylne 
& K. 240, 244, 248 ; Utterson ». Mair, 2 Ves. jr. 95 ; S. C. 4 Bro. Ch. 



CH. IV.] PARTIES TO BILLS. 213 

a Bill against the executor for an account, may Join 
the surviving partners, as a party defendant, in order 
to have a full account of all the personal assets taken 
at the same time, even without any charge or proof of 
collusion.^ Indeed, it seems now to be held, that in 
all cases of a Bill, to obtain satisfaction of a debt or 
claim out of the estate of a deceased partner, his sur- 
vi^ng partners may Ik? joined with the |)ersonal repre- 
sentative of the deceased partner, without stating a 
case either of collusion or insolvency, upon the mere 
ground, that it is necessary to an entire account of the 
assets, and that the survivors are interested to contest 
the demand of the plaintiff, and of all other |)ersons 
claiming to be joint creditors.^ 

R. 270 ; Ante, ^ lAT. Upon the same ground, if a suit in E(|nity is 
brought against the executors of a deceased partner to recover a debt from 
the partnership on account of the survivinrr ))artners l>einp insolvent, the 
Utter, or those, who represent them, it should seem, ou^lit to 1)0 made 
parties, as proper parties to the account and as primarily liable to pay the 
debt. Sec llamcrsley r. I^mbert, 'J John. Ch. U. 508 ; Vulliamy v. No- 
ble, 3 Meri^. R. 593; Pierson v. Robinson, 3 Swanst. R. 139; Wilkin- 
son V. Henderson, 1 Mylne & K. 585 ; Devaynes v. Noble, Sleecirs case, 
1 Meriv. R. 530. 547 ; Ante, ^ 107. 

1 Bowsher v. Watkins, 1 Kuss. & Mylne, 277. But in Da vies v. Da- 
Ties, 9 Keen, R. 534, Lonl Ijani>dale said, that the decisitm in Howshcr 
V. Watkias was far from establibhiiir^ the general pro]Kisilion, that in eve- 
ry case a Bill might be filed against an executor and the surviviiii; part- 
ner of the testator, without charging or proving fniud or collusion ; and 
that that case turned on special rirrumstancea ; and acconlingly he over- 
ruled the doctrine in the case lH.-fore him. On the other hand, Mr. Baron 
Alderaon, in Thor|>o v. Jackson, 'J Vounge &: Coll. 553, h«'ld« thai to a 
Hill of joint creditors against the estate of a decfased partner, the surviving 
partner ought to b<' made a |>arty, even although no drcrre is nought 
against him ; because he Ls necL'SJ^arily inii'rebte«l in taking tlir acccunts. 
Under these circumstanrt's, I have U-fi tlic text in its prest-nt Mate. See 
Ante, i 167. 

* So the doctrine si'rms laid down in Ncwland r. Champion, 1 Ves. 
105. It was dir«H'tly d«-cid(*d by thi; M:u»ter of the Rolls in Wilkins«in v. 
Henderson, 1 Mylne & K. o**'2, and it was n-rognizi'd by Iiord Hrongham 
in Holland v. Prior, I Mylne 6: K. '«M0, -J4*J-;.M4, wlnri! he applnil the 
doctrine to the case of the repruseutative of a deceased representative. 



214 EQUITY PLEADINGS. [CH. IV. 

^ 179. In cases, where the executor or administra- 
tor is required to be made a party, it is not sufficient, 
that he is such by the appointment and authority of a 
foreign government ; but he must be such by the ap- 
pointment of the government, within whose territorial 
dominions the suit is brought. For although there 
may be personal assets in a foreign country, and a per- 
sonal representative constituted there ; yet he is not 
properly answerable to the process of the courts of 
another country ; and the assets received by him must 
be administered according to the laws of the foreign 
country, from which he has derived his authority. In 
his character, therefore, of a foreign executor or admin- 
istrator, he is not a proper or necessary party to sub- 
stantiate, or to repel, a demand affecting the personal 

without any collusion being suggested between him and the present rep- 
resentative. Ante, ^ 167. The case of Wilkinson v. Henderson, 1 
Mylne & K. 582, further decided, that a joint creditor was not compellable 
to pursue the surviving partners in the first instance; but he might resort 
at once to the assets of the deceased partner, without showing, that he 
could not obtain full satisfaction from the survivors ; leaving it to the per- 
sonal representative of the deceased partner to recover from the survivors, 
what upon the account should appear to be due from the survivors to the 
deceased partner. In such a case, however, the surviving partner is prop- 
erly joined as a party, as he is interested in contesting the demands of all 
the joint creditors, though no decree can be made against him in such 
suit. See also Braithwaite v. Britain, 1 Keen, R. 219; Brown v. Weath- 
erby, 12 Sim. R. 6, 11. In Long v. Majestre, 1 John. Ch. R. 305, Mr. 
Chancellor Kent recognized the same distinction made by Lord Hardwicke 
in Newland v. Champion, 1 Ves. 105. In Simpson v. Vaughan, 2 Atk. 
33, Lord Hardwicke said ; *^It has been said at the bar, that you may 
make any person a defendant, that you apprehend has possessed himself 
of assets, upon which you have a lien. But this certainly cannot be laid 
down as a general rule ; for it would be of dangerous consequence to in- 
sist, that you can make any person a defendant, who has assets, unless 
you can show to the Court, he denies that he has assets, or applies them 
improperly." In Butts v. Genung, 5 Paige, R. 254, the surviving part- 
ner was deemed a proper party. But the point was suggested, whether, 
if he was insolvent, he was a necessary party ; and it was lefl undecided. 
See also Davies v. Davies, 2 Keen, 534, and Thorpe v. Jackson, 2 
Younge & Coll. 554, cited in this section, note (1). Ante, ^ 167. 



..-..jj 



CH. IV.] PARTIES TO BILLS. 215 

assets of the deceased in another country, where the 
suit is brought/ and a personal representative of the 
deceased, apiminted in the countr};, where the suit is 
brought, is a necessary and proper party .^ 

^ 180. Fourthly. In cases of persons, having a 
title to real estate, as heirs at law, or as devisees, 
which is charged with or liable for debts. AVe have 
already seen, that the heir and devisee must be made 
parties, as well as the personal representative, to a 
Bill, which seeks payment of a Ijond, binding the heirs, 
out of the estate devised by the debtor.^ The like 
principle applies (as wo have also seen ^) to the case 
of a Bill to carry into execution the trusts of a will dis- 
posing of re<il estate by sale or charge of the estat(5 ; 
for in such a case the heir and devisee (if the estate is 
devised) are ordinarily necessary and projn^r parties.* 
The heir at law should be a party, because it is prop- 



I Story un C*oiiflirt of Laws, <^ 513, 511; Mitf. Va\. IM. Iiy Jcrciity, 
177, 17>*; Jaiinrcy v. Sral«-y, 1 Voni. R. 397 ; Ijowc v. FairIU\*J M.uM. 
C.h. R. 101 ; Ijftfran v. Fairlio, v! Sim. & Stii. *2H|. Hut scr SaridilaiulM 
V. Inncs, 3 Sim. *J(!3, aiul Aiidt^rMin v. (*uuntL'r, 2 Myliic & K. 7<i3. 

« Tyler v. Btli, '2 Mylnc & Craij:. K. bl). 

5 Ante, § I7«; Mitf. Va\. PI. by Jcnmy, 170; Cawli^r v. Waile, I P. 
Will. 09: Chaplin r. ('haplin, 3 P. Will. 307; (Walton r. Ilaiicork. :2 
Atk. 43-2-13d; Madox r. JacktKin, 3 Atk. i(>6: Ashurst v. Kyr«\ 3 Atk. 
341 ; Calvert un Purties, ch. 3, § 2, p. I3i)- KiO ; Id. $ 3, p. Kil - 170 ; 
Kdfrardaon PanicH, 107- PJH ; Id. 12'J-130. 

* Ante, 4 17-J, 17« ; Mitf. Va\. PI. by Jircmy, 171. 173; Asluirst v. 
Eyre, 3 Atk. 311 ; ISniun r. Wiatliirrby, 10 Sim. U. I*J5. Hut sec An- 
te, i 103 Hid noti*. 

^ But aec Ante, ^ l(i3, I7() ; (iiMKichild r. Terriit, 5 Hravan, U. 3!iH. It 
ia aid io the text, onhntinli/; U.-cauM* iftlw.* Iii>ir is i>ut of the muniry, or 
no heir can be fuiind, be ia dispfuiicd with an a party. .-Vntis ^ r«7; Mitt'. 
¥d{. PI. 171-173; Cax^Icr i;. Wadr. I P. Will. !»!l. KNI. Sonn'timps a 
decree, confeiwrdly dt'firrtive, in niadt> on acctMint of tb(* absfiicf' i>f an 
hcif, where Burh a dfiTt'c ran prn]i(;rly 1m.' niadt*. IlarriM r. HiHbop of 
Liaeuln, tf P. Will. 137 ; (iraham v. (.^rabani, I Vus. jr. 'J70. Wlirro 
■o heir can be fnuud, it in UBual to make the Attonicy-drncral a party in 
hifl tiead. Humberston r. ilnmlR^nton, I P. Will. 33'J ; Mitf. F^i- PI. 
hy Jeremy, 17*2, 173. 



216 EQUITY PLEADINGS. [CH. IV. 

er, that the will, if there is one, should be established, 
and the title quieted against his demand, if he has 
any.* The devisee should be a party to vindicate his 
own interest, and to contest the right to sell or charge 
the estate.* 

§ 181. Upon the like ground, where an estate, 
which is mortgaged, is devised, if the devisee brings a 
Bill to redeem, and seeks to have the will established, 
the heir at law is a necessary party. But it will be 
otherwise, if the devisee seeks only to redeem by a 
title derived under the will.* So, if the object of the 
Bill is to carry into effect the trusts of a will, by rais- 
ing portions for younger children out of the real estate 
of the testator, the heir at law, and the devisee (if 
any is interested), must be made parties.^ However, 
(as we have already seen,) where the object of a Bill 
is to carry into effect the trusts of a will, if the will is 
not sought absolutely to be established, and the heir 
cannot be, or is not, brought before the Court, a de- 
cree will often be made to carry into effect the trusts 
of the will, leaving the heir to his right to contest it, 
in any manner, in which he may be enabled to do it.* 
So, where there is an annuity charged on lands, if the 

1 Mitf. Eq. PI. by Jeremy, 171, 172; Ante, § 163, 176. 

« See Mitf. Eq. PI. by Jeremy, 171-173; Warren v. Stawell, 2 Atk. 
125; Harris v, Ingledew, 3 P. Will. 92, 98; Jackson v. Radford, 4 
Price, R. 274; Attorney-General v. Green, 2 Bro. Ch. R. 492. See 
also Gallon v. Hancock, 2 Atk. 232-238; Plunket v. Joice, 2 Sch. & 
Lefr. 159; Fordham v. Rolfe, Tamlyn, R. 1 and note. But see Ante, 
§ 163, 176. 

3 Lewis V. Nangle, 2 Ves. 431; S. C. Ambler, R. 150. See also 
Colton V. Wilson, 3 P. Will. 190 ; Morrison v. Arnold, 19 Yes. 673 ; 
Harris v. Ingledew, 3 P. Will. 92, 94 ; Calvert on Parties, ch. 3, § 6, p. 
179-187; Edwards on Parties, 87 - 98. 

4 Plunket V. Joice, 2 Sch. & Lefr. 159. 

5 Ante, § 87 ; French v. Baron, 2 Atk. 120 ; Webb v. Lilcott, 3 Atk. 
25; Banister v. Way, 2 Dick. R. 599; Cator v. Butler, 2 Dick. 438; 
Thompson v. Topham, 1 Younge & Jer. 556 ; Harris v, Ingledew, 3 P. 
Will. 92, 94 ; Mitf. Eq. PI. by Jeremy, 172, 173. 



CH IV.] PARTIES TO BILLS. 217 

lands are sought to be affected, the heir at law is a 
necessary party ; but it is otherwise, where the suit is 
only for a personal charge against die personal repre- 
sentative.^ 

^ 182. Fifthly, in cases of Mortgages. Whenever 
the interests of the mortgagor or of the mortgagee is 
concerned in any suit, brought by a third person re- 
specting the premises, they, like other parties, are 
proper parties to the Bill.^ But the most usual cases 
are those of suits l)etwcen the parties themselves, to 
redeem, or to foreclose the mortgage. And this admits 
of two different considerations : (1.) Who are proper 
parties to a Bill to redeem : (2.) Who are proper par- 
ties to a Bill to foreclose. Each of these heads will be 
examined in its order. And, in the first place, who 
are proper parties to a Bill to redeem, as plaintiffs. If 
the mortgagor brings the Bill against the mortgagee, 
there having l)een no death or assignment on either 
side, and no other circumstances to affect the case, it is 
of course, that no other persons but them need Ik^ made 
parties. If the mortgagor be dead, then his heir, or his 
devisee, if the estate has biM^n devised, is the proper 
party to redeem, if it be a mortgage in fee ; and if it 
be a nx>rtgage for a term of years only, then the per- 
sonal representative of the deceased. If two estates 
are mortgaged, and by the death of the mortgagor the 
equity of redemption of the two estates is vested in 
difTercnt persons, all of them must be made parties to 
a Bill to redeem.' If a Bill to redeem charges, that a 
part of the mortgage, principal and interest, has In^en 
paid by the mortgagor in his lifetime, the personal 

> WeatoR V. BowoH, M<m1. R. 309. 
■ Hoxie V. Carr, I Sumner, R. 173. 

' Cholmondelry v. Clintfin, 3 Jar. & Walk. 1. %!. Srr aliMi IK'Xtrr v. 
Arnold, 9 Sninner. R. imt. 

CQ. PL. 28 



218 EQUITY PLEADINGS. [CH. IV. 

representative of the mortgagor, as well as his heir, or 
devisee, is a necessary party, to take the account of 
what is due on the mortgage.^ Indeed, as the per- 
sonal assets are usually first to be applied in exonera- 
tion of the real estate mortgaged, it would seem, that 
in a Bill by an heir or devisee to redeem, he anight 
properly make the personal representative of the mort- 
gagor a party defendant, in order to have the assets 
so applied ; and thus to relieve himself from the burden 
of the incumbrance.^ 

§ 183. If the mortgagor has assigned the estate, 
subject to the mortgage, and the assignee is to pay off 
the mortgage ; then the assignee may maintain a suit 
to redeem, without making the mortgagor a party. 
But if the assignment be of the whole real estate, ab- 
solutely free firom incumbrances, then the mortgagor 
should, or at least may, be made a party, in order to 
be bound by the decree, and to assist in taking the ac- 
count ; he being primarily liable to discharge the mort- 
gage. If the assignment is made to several persons 
jointly, all of them should be parties to the Bill to 
redeem.^ 



1 Cholmondeley v. Clinton, 2 Jac. & Walk. 135. 

« Howell V. Price, 1 P. Will. 291 ; Daniel v. Skipwilh, 1 Harris. Ch. 
Pract. by Newl. 30; Waring v. Ward, 7 Ves. 336-340; Bradshaw r. 
Outram, 13 Ves. 234; Duke of Cumberland v. Coddrington, 3 John. 
Ch. R. 257; Ryland v. La Touche, 2 Bligh, R. 566, 584 ; 1 Story on 
Equity Jurisp. ^ 571-578; Robinson v. Gee, 1 Ves. 352; Knight v. 
Knight, 3 P. Will, 333, and note ; King v. King, 3 P. Will. 358. There 
is a clear distinction, which should constantly be borne in mind, between 
persons who are indispensable parties, and persons, who may properly be 
made parties, and yet if they are not, the suit may proceed without them, 
without being defective. If, upon a Bill to redeem, it should be charged, 
that the mortgage debt had been actually extinguished by the receipts 
and profits of the estate by the mortgagee during the life of the mortgagor, 
the personal representative of the latter, as well as his heir or devisee, 
should be a party to the Bill. Ryland v. La Touche, 2 Bligh, R. 566, 
584 ; Ante, § 153, 175. 

3 Palmer v. Earl of Carlisle, 1 Sim. & Stu. 423, 425. 



CH. IV.] PARTIES TO BILLS. 219 

§ 184. Where a mortgagor has conveyed his equity 
of redemption to trustees for the benefit of his otiicr 
creditors, the trustees alone are generally the proper 
parties to a Bill to redeem, and not any of the creditors 
entitled under the trust.* But a special case may ex- 
jst, in which such creditors would lie entitled to re- 
deem ; as, for example, if the trustees should collude 
with the mortgagee, or should refuse to sue, or should 
be insolvent.^ Other cases may also be put. Thus, 
where three persons, A., B., and C, made a mortgage 
of real property for the debt of one of them. A., to 
D., and the other mortgagors took a mortgage of the 
same property to indemnify themselves for the conse- 
quences of joining in the first mortgage, and then A. 
assigned his interest in the same property to three 
trustees for certain scheduled creditors, who were 
fifty-four in number ; and a Bill was brought by the 
mortgagees, B. and C, against 1)., to redeem; it was 
held, that the creditors named in the schedule were 
necessary parties to the Bill, and were not sufliciently 
represented by the trustees.^ 

§ 185. Hitherto, we have been considering the more 
simple cases of Bills to redeem. But, in many cases, 
there are various jiersons having a privity of estate, 
under or with the mortgagor, of particular inten^sts, 
not embracing the whole fee, who are entitlr^d to re- 
deem. Such i)ersons have a clear right to disengage 
the pro{)crty from all incumbrances, in order to make 
their own claims Ix^neficial or available. IIrn<*(*, a 
tenant for life, a tenant by the curtesy, a tenant in 



• Cooper, Kq. PI. 175; Tn»ujrhton r. niiikc8,fl Vcb. 573, 575. 

* Troughton v. Biiikos, Voh. 573, 575. In such a cmc, the Bill 
•hoaU be brought on behalf of all the creditors, fur a few could nut re- 
fer their own benefit. Ihid. 

3 llolUod V. Baker, 3 Hare, U. Gb. 



220 EQUITY PLEADINGS. [CH. lY. 

dower in many cases, a reversioner, a remainder-man, 
a judgment creditor having a lien on the estate, a ten- 
ant by elegit, and, indeed, every other person, being a 
subsequent incumbrancer, or having a legal or equita- 
ble title or lien on the premises, already sulyected to a 
mortgage, may insist upon a right to redeem, in order 
to enforce his or her own claims and interests in the 
land.^ In such cases, the plaintiff should, however, for 
the purposes of contribution and taking a conclusive 
account, make the other persons, in the same interest 
with himself, parties (either as plaintiffs, or as defend- 
ants, as the circumstances may require) to the Bill to 
redeem.^ A question has been made, whether, in such 
cases, the other parties possessing the remaining inter- 
ests are absolutely necessary parties. It is clear, that 
they are so, where their interests may be affected by 
the decree. And it has been recently held, that they 
are so in all cases ; and that a person having a partial 
interest in the equity of redemption cannot, in the 
absence of the other parties interested therein, main- 
tain a Bill to redeem.* The probaUe ground of this 
opinion is (for no reasons are given for it), that it is to 
prevent multiplicity of suits, and is governed by the 
same reasons, which apply to other joint or successive 
interests in the same subject-matter. 

§ 186. Cases often exist of successive mortgages 
under the same mortgagor. In such a case, the second 
or other subsequent mortgagee, has, upon the princi- 
ples already stated, a right to redeem either one or all 



1 2 Story on Equity Jurisp. § 1023 ; 2 Fonbl. Eq. B. 3, ch. 1, § 8, 
note (p). 

» See I Story on Equity Jurisp. § 484-490; Ante, § 72, 76, 159, 
162, 165. 

3 Henley v. Stone, 3 Beavan, R. 355 ; Ante, § 161. 



CH. IV.] PARTIES TO BILLS. 221 

of the antecedent mortgages.' To a Bill l)roii<;lit by 
him for such a purpose, the mortgagor, or his heir, or 
other pro|)er representative in the realty, is a necessary 
party ; for, it is said, the natural decree, in such a case, 
is, that the second mortgagee shall redeem the first 
mortgagee, and the mortgagor or his representative in 
the realty shall redeem the second, or stand fore- 
closed.^ And a Court of Equity, in such a case, 
endeavours to make a complete decree, that shall em- 
brace the whole sulyect, and determine upon the rights 
of all the parties interested in the estate.^ But, in 



I No prior mortgaj^ees, except those, who are parties to the Hill, would 
be bound by the decree. See the cases of Fiiiley v. Baiik uf riiited 
Sutes, II Wheat. R. 30i, and Uice r. Page, 2 Sim. K. 171, which, 
tboagh cases of foreclosure, may furnish an analogy. See r)chil>erc v. 
Nonroody 3 Swanst. H. 141, note ; Godfrey r. Chad well, *2 Vern. Oil ; 
Haines v. Beach, 3 John. Ch. R. 45U ; Ante, ^ 1H5. 

s Ante, § 186 and note. 

' Fell V. Brown, 3 Bro. Ch. R. 27S ; Palk v, Clinton, 13 Vcs. 58, 59 ; 
Fanner v. Curtis, 2 Sim. R. 400 ; llolmt v. Abliott, 2 P. Will. 013 ; 
Adams V. St. Lrgcr, 1 B. & Bcalt. IKI, 1H5; AnU;, § 175; Vn^x,^ lUO ; 
Lord Tharlow, in Fell v. Brown, 2 Bro. Ch. R. S7H, pinthi-d this diK'trinc 
so far, as to deny the second mortgagee a right to rodocin. where th«^ heir, 
being abroad, could not be made a party. Why, in such a case, a decree 
might not be made, allowinf? the second mortgagee to redeem, without 
more, espeeially if he pmys no iiii>re, it in nut ea«y to say. In Palk r. 
Clinton, 13 Ves. 54, the Master of the Rolls (Sir William (2rant), with- 
oat negativing such a pn>ceeding or decree, said it would he very unusual, 
unless the mortgagor wero before the (-uurt. A case might easily l>e 
sappoecd, where such a decree would l>e the only pn)|)cr decree; ilh where 
the first mnrtgafjee wai* in jKLSMrsxion, and the second mortgagru uish«*il 
to obtain the p4)5s«>Mfioii, and to r«-ih'i'iii ; yet his own mortgiige was not, 
by any breach of the condition, capaMe of lM*ing enforced against tin- mort- 
gagor. In such a case, the mortgagor might lie a prui»<*r party, if to bu 
found ; but if not to be found, it would hn hard to say, that \\u* mMMind 
morlgagoe^s right to redet*m was 8un|ionded. l/ord Hurdwirkf*, in Howuh 
V. Wadham, Ridg. R«*p. Temp. Hardw. I!l<», stated the grnrral reattoniug 
for Baking the heir a party in such a case, in these wonls : — *' It is true, 
llMit a pers<m, who takes a subscMpient security, may In; com{M'lli'd to re- 
deem the first ; but then thi^ account must be «rntire, and the redemption 
entire and concluaivc upon all parties, and all the securities brought bi-tore 
the Court. And, in the present case, the account could not be conclusive 



222 EQUITY PLEADINGS. [CH. IV. 

such a case, it seems, that the personal representative 
of the mortgagor would not be a necessary party, even 
though it might, perhaps, be competent to make him a 

party. ^ 

§ 187. Where a Bill is brought to redeem by the 
party entitled to the equity, against a purchaser, who 
is asserted to have had notice of the equity, but who 
has purchased from a person, who had no notice, it 
seems, that the proper representatives of the latter 
should be brought before the Court, since their inter- 
est may be affected by the decree, and they can prop- 
erly set up the defence of want of notice.^ 

^ 188. The next consideration under this head is, 
who are the proper parties to be made defendants in 
a Bill to redeem ? In general terms, it may be stated, 
that all persons ought to be made parties, whose in- 
terests or rights may be affected by the decree.* The 
mortgagee is, of course, the only necessary and proper 



for want of the heir of the mortgagor before the Court, who may traverse 
such account. And, therefore, the party who redeems, may pay such a 
sum to redeem the term, which, when examined into, there may not be so 
much money due as against the heir. And the Court will not lead a pur- 
chaser into a snare ; and the Court will not do a vain thing, that is, decree 
an account between the parties, which may be opened hereafler by other 
parties ; for that would be endless ; and, therefore, the Court will not 
make a decree, till it can make a complete one." 

i Fell». Brown, 2 Bro. Ch. R.278; Ante, §84, 173, 175, 176; Post, 
§ 196. 

2 Lowther v. Carlton, 2 Atk. 138. Mr. Calvert, in his Treatise on Par- 
ties (p. 18), considers this case as an anomaly, and says, that it is not 
correctly reported ; and he gives a fuller statement of it from the plead- 
ings on record, by which, it seems, that the Bill sought an account of the 
sums received under the mortgage, in taking which account the assignee 
of the mortgagee had a right to the assistance of his assignor. But there 
was a waiver at the hearing of any account of the rents and profits re- 
ceived by the assignor (Liord Wharton), and Liord Hardwicke put his 
decision expressly on the other ground. 

3 See Calvert on Parties, ch. 3, § 6, p. 179-187; Edwards on Par- 
ties, 87-98. 



CH. IV.] PARTIES TO BILLS. 223 

party in all cases, where there is no other outstanding 
interest under him. If the mortgage is in fee, and 
the mortgagee is dead, the heir at law of the mortga- 
gee, or other person, in whom the legal estate is vest- 
ed by devise or otherwise, must be made a pcirty ; be- 
cause he has the legal title, and is to be Imund by 
the decree. And the personal representative of the 
mortgagee also must be made a party ; because, gener- 
ally, he is entitled to the mortgage money, when paid, 
as it is to be returned to the same fund, out of which 
it originally came.^ But if the mortgage is of a term 
of years, created by the owner of the fee, the per- 
sonal representative of the mortgagee only, without 
the heir at law, is the proper party ; for he alone is 
interested in the term, unless the term has been dis- 
posed of in favor of third {)ersons ; in which case they 
also should be made parties.^ 

^ 189. Where the mortgage has been absolutely as- 
signed by the mortgagee, without the authority and 
privity of the mortgagor, it is not necessary, in a Bill 
brought by the latter to redeem, to make any i)erson 
Init the last assignee a party to the Bill, however many 
mesne assignments have been made; for, in such a 
case, the last assignee is understood to have contract- 
ed, not only to stand in the place of the original mort- 
gagee, and to n?prosent him, but also to stand in the 
place, and as the representative of all the other mesne 
assignees, until the tide was taken by himself; and 
he may accordingly be decreed to convey.* Where 
the assignments have biMui made with the authority 



• (hooper, Va\. 1*1. 37; Anon. 2 FnuMii. .V2; Clarkson r. Howyi r, *J 
Vein. 6G ; Dexter V. Arnnhl. I Suinnfr, K. 10!). 

* OalMani r. Fallow a, 1 Husb. & Myliio, 741 ; Tuoprr, l]*\. 1*1. 37. 

' Hill V. Adams, 3 Atk. 3D; ChanibL'ra r. (ioldwin, V<-h. ;!()h, efii); 
Bishop of Winchmiter r. Hcavor. 3 Voh. 315. 3ir.. 



224 EQUITY PLEADINGS* [CH. IV. 

and privity of the mortgagor, whether any intermedi- 
ate assignees should be made parties or not, must de- 
pend upon circumstances, that is to say, whether they 
have any interests, which are recognized, and to be 
asserted and protected; for if the assignments are 
absolute, and the amount due on the mortgage is 
clearly stated and admitted in the assignments, there 
is no ground, on which either the original mortgagee, 
or the mesne assignees, need be made parties, since 
there is nothing to settle between them. 

^ 190. But where the mortgagor seeks in his Bill 
an account of rents and profits, or other sums received 
by the mortgagee before the assignment, the mortga- 
gee should be made a party to the Bill, as well as the 
assignee ; for he is a necessary party to the account J 

^191. Where the mortgagee has not assigned his 
whole interest in the mortgaged property, but he re- 
tains an interest in it in part, he is a necessary party, 
as well as the assignee, to a Bill to redeem.^ So, 
where there are successive mortgages, the second 
embracing a part only of the estates comprehended in 
the first ; if the second mortgagee brings a Bill to re- 
deem the first mortgagee, and the equity of redemp- 
tion of the mortgagor in the different estates has be- 
come vested in different persons, all of them should 
be made parties to the Bill ; for they are all interested 
in taking the account.^ 

§ 192. Where the mortgagee has assigned his whole 
interest upon certain trusts, the trustee, and cestuis que 



1 Anon. 2 Frcem. R. 59 ; Lowther v, Carlton, 2 Alk. 139. 

9 Hobart V. Abbott, 2 P. Will. 643 ; Norrish v. MarshaJl, 5 Madd. R. 
475. 

3 Palk V. Clinton, 12 Yes. 48; Cholmondeley c. Clinton, 2 Jac. & 
Walk. 134. 



CH. IF.] PARTIES TO BILLS. 225 

trust (or beneficiaries), are equally necessary parties to 
the Bill to redeem.^ 

^ 193. (2.) In the next place, who arc the proper 
parties on a Bill to foreclose a mortgage.^ And first, 
as defendants. And here, the same general doctrine 
may be asserted, that ail persons, whose interests arc 
to be affected or concluded by the decree, ought to be 
made parties. Therefore, all persons, having an in* 
terest in the equity of redemption, should Ik) made 
|iarties to a Bill of foreclosure,' and a fortiori to a Bill 
to sell the mortgaged property; for it will not in 
general be sufficient, if the equity of redemption is 
conveyed or devised to a trustee in trust, to bring him 
before the Court ; but the cestuis que trust (the l)enefi- 
ciarics) also should be made parties.^ If, on the other 
hand, the cestuis que trust are brought l)efore the Court, 
it should seem, that the trustees are not indispensa- 
Ue parties.^ So, if the equity of redemption bi»longs 
to diflercnt persons as donsecs, or as legatees, having 
charges thereon, all of them should l)c joined as de- 
fendants.'' And hence it has been asserted to l)e the 
general, (although not the universal) nile, that all in- 
cumbrancers, as well as the mortgagor, should bo 
made parties, if not as indispensable, at least as pro|)er 
parties to such a Bill, whether they are prior or sub- 



» Whistler r. W«;l»b, Bunb. H. 53; Wciherell v. CollinR, 3 Maihl. U. 
2&5; Drew v. Hainan, 5 Price. K. 31». 

■ See CiWert un Parties, rh. 3. § fi, p. 179-187; Ktlwanls on Par- 
tiee, 87-06. 

S Caherley v. Phpl|m, A Mu<M. 331 ; Whintlerr. Webb, Hiinb. R. .'iS ; 
Howes V. Wsdham. Ridp. Rep. Temp. Hardw. 190. 

* Ibid. ; Poul, § 'jn7. 

> Slide V. Rlg(7, 3 Hare, R. 36. Sec aliio Holland v. Baker. 3 Harp, 
R. 68, 73. 

• McGowD V. Yurks, John. Cb. R. 4S0. 

EQ. PL. 29 



226 EQUITY PLEADINGS. [CH. IV. 

sequent incumbrancers.* There are certainly some 
acknowledged exceptions ; such, for example, as where 
a second mortgagee brings a Bill to foreclose against 
the mortgagor, and a third mortgagee ; for in such a 
case the first mortgagee need not be made a party .^ 
And it may now well be doubted, whether in any case 
it is necessary for a puisne mortgagee, who seeks to 
sustain a Bill of foreclosure against the mortgagor and 
subsequent mortgagees to himself, to make any prior 
mortgagee to himself a party to the Bill.* If, indeed, 
any incumbrancers (whether prior or subsequent) are 
not made parties, the decree of foreclosure does not 
bind them, as, also, a decree of a sale would not. The 
prior incumbrancers are not bound ; because their rights 
are paramount to those of the foreclosing party.^ The 
subsequent incumbrancers are not I)ound; because 



1 Finley v. Bank of United States, 11 Wheaton, R. 304; Bishop of 
Winchester v. Beavor, 3 Ves. 315-317; Haines v. Beach, 3 John. Ch. 
R. 459 ; Bishop of Winchester v. Paine, 11 Ves. 198; Mondey v. Mon- 
dey, 1 Ves. & Beam. 223 ; Cockes v. Sherman, 2 Freem. R. 14; S. C. 
Sherman v. Cox, 3 Ch. Rep. 83 [46]; Ensworth v. Lambert, 4 John. 
Ch. R. 604 ; McGown v. Yorks, 6 John. Ch. R. 450. But see Rose v. 
Page, 2 Sim. R. 471 ; Odell v. Graydon, 6 Bro. Pari. R. 67, Tomlin's 
edit. ; Ante, ^ 164. 

2 Rose V. Page, 2 Sim. R. 471 ; Delabere v. Norwood, 3 Swanst. R. 
144, note. See Post, note (1) ; Calvert on Parties, ch. 1, ^ 1, p. 13, 14. 

3 In Richards v. Cooper, 15 Beavan, R. 304, it was held, that a puisne 
mortgagee may sustain a Bill of foreclosure against the mortgagor and 
mortgagees subsequent to himself, without making the prior mortgagee a 
party. Indeed it is not easy to perceive any very good reason, why in 
such a case any subsequent mortgagee should be positively required to be 
a party, although, at the election of the plaintiff, he may properly be 
made a party. It is one thing to allow a subsequent mortgagee to be 
made a party, and quite another thing to insist, that he must be. The 
reason for the distinction is stated in the text. See also Slade v. Riggf 
3 Hare, R. 35, 38. 

4 Finley v. Bank of United States, 11 Wheaton, R. 304 ; Delabere v, 
Norwood, 3 Swanst. R. 144 ; Shepherd v. Guinnett, 3 Swanst. R. 151 ; 
Rose V. Page, 2 Sim. R. 471. 



CH. IV.] PARTIES TO BILLS. 227 

their interests would otherwise be concluded without 
any opportunity to assert or protect them.* 



* Haines v. Beach, 3 John. Ch. R. 459 ; Draper v. Earl of Clarendon, 

5 Vera. 518; CMnlfrcy v. Ch.iilw*?!!, 2 Vcrii. 001 ; Morret r. Westrriie, 2 
Vera. 6fi3 ; Hohart v. Abboil, 2 P. Will. 013 ; Sherman v. Cox, 3 Ch. R. 
83 [40]; S. C. Cockes v. Sherman, 2 FretMn. 11, Mr. Ilovendcn's note. 
In BiUfl of foreclosure, it is usual to put an interro<;atory to the mortgagor, 
&c., whether there are any, and what incunihrancers ; and if the answer 
states any, it has always hi't^n the practice to make them parties. Per coun- 
sel argyrndo in Bishop of Winchester r. Beavor, 3 Yes. 315. There is a 
reaaoB stated by Lord A I van ley in this case, why they should be made 
parties; and that is, that otherwisu, if the mortgagor should redeem, the 
Court would be guilty of the injustice of com^K'Hing the mortgagee to 
reeonvey to the mortgagor, where it would appear by his own answer, 
that he had no right to it, whereby he might posscHs the legal title, and 
thus keep off thereby the other incumbrancers. If the mortgagor is an 
infaot, the Court will inquire by the Master, if it is fur his interest to 
have a sale, and if it is, will decree a sale. Mondey v. Mondey, 1 Ves. 

6 Beam. 233. See also Goodier i;. Ashton, 18 Ves. H3. In the former 
case, the sale was by consent. In America, it is a common course to de- 
cree a sale, instead of a foreclosure, as well in the case of adults as of 
iDfanta. Mills r. Dennis, 3 John. C|i. R. 307. BrinckerhofTr. Thalha- 
mer, S John. Ch. R. 4^0. In Rose p. Pa:ie, 2 Sim. R. 471, the Vice- 
Chancellor decided, that to a Hill by a si'cond mortgagee to foreclose 
against the mortgagor and a third mortgagfe, the first mortgagee was not 
a aeceaaary party, liccause his rights were paramount. The same point 
waa decided as to prior annuitants in Delabere v. Norwood, 3 Swanst. R. 
Ill, note ; and a distinction was there taken between prior annuitants and 
aabaequent annuitants, the latter being prup'r, though not necesHary par- 
ties; for they are compellable to join in the sale of the mortgaged property. 
The eaaea id the text in 3 Ves. 315, 11 Wheat. R. 304. 3 John. Ch. 45U, 
aeem to treat all inrrumbmnrers as necessary parties. Perhaps all the 
authorities may lie reconciled by considering all ineunibrancers propter par- 
liea, although not in all cujm's indihi>en»«abln partii's. See 1 HarrlMuuCh. Pr. 
hy Newl. p. 30, edit. Ihoh. Sinci; the pn-ec-ding n>marks were written, I 
hate read Mr. Calvert's olnMT\ations on the same subjeet. (T.-tlv. on 
Partiea in fv{. 12H.13H.) He has made a mllrriion of th** authorities 
applicable to the pomt« how far nil sub}4e(|urnt incumbraiirtTs should bo 
made partiea. Thefir authoritifs are not all eiisily n^conrilabb; ; an«l Mr. 
Calvert has diHlnrvd the conrlusion from a review of all of thrni. that the 
qoeatioD is still left undfcidt'd m Kn^'land. Two propohitions are stated 
hy him to In* clear. (I.) That mort}!:it'i>fN have been allow «d to forc- 
ekiee iu the absenci: of •iiibsi'tpii-nt inrunibrancers ; for which hf rites 
Needier V. Ileeblr. 1 Ch. ('as. 2«.i«.» ; Rosr.irick v. Barton, I Ch. C.is. 217 ; 
Greahold v. Marsham, 2 Ch. Cas. 171 ; <;<ickes v. Sherman. 2 Freein. R. 



228 EQUITY PLEADINGS. [CH. IV. 

^ 194. Upon similar grounds, if there is a principal 
mortgage, and another mortgage as collateral security 
for the former, both mortgagors must be made parties 
to a Bill of foreclosure ; for the second mortgagor has 
a right to redeem, and be present at the account, to 
prevent the burden ultimately falling on his estate to a 
larger amount, than the first estate might be sufficient 
to satisfy.^ But incumbrancers, who become such pen- 
dente lite^ are not deemed necessary parties, although 
they are bound by the decree; for they can claim 
nothing, except what belonged to the person, under 
whom they assert title, since they purchase with con- 
structive notice ; and there would be no end to suits, if 
a mortgagor might by new incumbrances, created pen^ 
dente lite, require all such incumbrancers to be made 
parties.* For a similar reason, if a mortgagee has de- 
signedly made several conveyances in trust, in order to 

13; S. C. 3 Ch. Rep. 83 [46]; Lomax v. Hide, 2 A'^ern. 185; Draper v. 
Clarendon, 2 Vem. 618 ; Godfrey v, Chadwell, 2 Vern. 601, and Morret 
V, Westeme, 2 Vern. 661. (2.) That the decree of foreclosure is not 
conclusive upon subsequent mortgagees, who are absent ; and that upon 
proof of collusion they have been allowed to open the account ; for which 
he cites. Needier v. Decble, 1 Ch. Cas. 299 ; Cockes v. Sherman, 2 
Freem. 14 ; Lomax v. Hide, 2 Vem. 185 ; Draper v. Clarendon, 2 Vern. 
518. Upon principle, he thinks, that subsequent incumbrancers are not 
necessary parties, although it may bo proper to make them parties with a 
view to a final settlement of the rights of all the persons in interest. 
There is much good sense in this conclusion, as well as in the reasoning, 
by which he sustains it. Perhaps, the solicitude of Courts of Ek|uity to 
make a final settlement of the rights of all persons interested in such a 
suit has carried them to an extent scarcely justifiable in point of principle 
or convenience. Lord Alvanley seems to have felt this, when, in the 
Bishop of Winchester v. Beavor, 3 Ves. jr. 317, he said; *'Th^ usual 
and common practice, almost without exception, is, to make all incumbran- 
cers parties. I hope, that the Court is not bound to insist upon all incum- 
brancers being parties." See Ante, § 148, 175, 186. 

1 Stokes V. Clendon, 3 Swanst. 150 ; S. C. cited in 2 Bro. Ch. R. 276, 
Mr. Belt's note. 

9 Bishop of Winchester r. Paine, 11 Ves. 194, 197 ; Garth v. Ward, 
2 Atk. 174. 



CH. IV.] PARTIES TO BILLS. 229 

entangle the title, and to render it difficult for the mort- 
gagor or his representatives to redeem, the Court will 
not hold the plaintiff bound to trace out all the persons, 
who have an interest in such trusts, in order to make 
them parties.' The same principle would sc^em to ap- 
ply to the converse case of a mortgagor, creating such 
tnist conveyances in order to entangle the title, and to 
prevent the mortgagee from a foreclosure; for in such 
a case the acts would 1x3 treated as a fraud U])on the 
rights of the other party. 

^ 195. It follows of course from what has been al- 
ready suggested, that u{Km a Bill of foreclosure the 
mortgagor himself is a necessary party, as well as the 
incumbrancers, whenever he possesses any right, which 
may be affected by the decree ; for he is a proi)er party 
to the account of what is due on the mortgage ; and 
ultimately he is entitled to redeem against all the in- 
cumbrancers, as the person having the ultimate in- 
terest.' And, besides, (as has lx!cn already stated,) 
the ordinary, or, as it is usually expressed, the natural 
decree in such a case is, that the mortgagor shall l)e 
foreclosed, if he does not redeem the otlicT mortgagees, 
who are before the Court.^ 

^ 196. If the mortgagor, who is owner of the fee. 



1 Tales V. Hainhly. 2 Atk. 237. 

* Ilallork V. Smith, I Jcihn. (*h. R. mil; Fanner r. TurtiH, 2 Sjni. 
R. 466; Fell 9. Drown, *J Un>. Ch. R. 'J7H ; P:ilk v. diiiton, V2 Vok. 

' Ibid. ; Ante, § IHO. Whrrp the Hill to forrcloRC in brnuL'lit by a 
■eeood manf^^cw, the heir of thp inort«;n^ror in a n(>rcK5ary party. thniif;h 
the aeeoiid mortirafrc c(»in|iriiioK only a part of the cKtau^s in tht* finit 
iB«irtg«ge. Palk p. dintnn. 12 Vrn. 48, 6H. h in not imiNirtant in this 
respect, whether thu mort^airf In* in fee. or by the creation of a trrm of 
yemiB in the mnrt^ci'i! ; for the hrir in earh rase must be made a party, 
ae he slone in intemtteil ; and the {N'monal rrpresK'ntativc ban notbinj; in 
the term m created, any more than in the fee. Dradshaw v. Out ram, 
13 Vcs. S35. 



230 EQUITY PLEADINGS. [CH. IV. 

should die, his heir is an indispensable party to a Bill 
to foreclose ; so that, if he be without the jurisdic- 
tion of the Court, the cause cannot be further pro- 
ceeded in.^ But, ordinarily, it is not necessary to 
bring the personal representative of the mortgagor, in 
such a case, before the Court ; for the heir alone has a 
right to the equity of redemption, which it is sought to 
foreclose ; and the mortgagee is under no obligation to 
intermeddle with the personal assets, or to seek an ac- 
count thereof.^ If the heir would have the benefit of 
any payments made by the mortgagor, or his personal 
representative, he must establish it by proofs; and he 
has no right to insist, that in such a suit the personal 
representative shall be joined to relieve him by pay- 
ment out of the personal assets; but he must bring his 
own Bill against such representative for such a relief.* 
The only cases, in which the personal representative is 
necessary to be made a party to a Bill of foreclosure, 
seem to be, where he has an interest in the equity of 
redemption; as, for example, where the mortgagor was 



' Fell V. Brown, 2 Bro. Ch. R. 276, 278 ; Howes v. Wadham, Ridg. 
Rep. Temp. Hardw. 199; Palk v. Clinton, 12 Yes. 48, 58; Farmer v, 
Curtis, 2 Sim. R. 466. But see in Leonard v. Morris, 9 Paige, R. 90, 
the effect of the New York statutes on this subject. 

2 Ante, § 175. 

3 Buncombe v. Hanstey, 3 P. Will. 333, Mr. Cox's note; Ante, § 175, 
186. But, although the personal representative ordinarily is not in such 
a case a necessary party, the mortgagee may at his election make him a 
party, and seek payment of the money out of the personal assets, and the 
deficiency only against the heir. Bradshaw v. Outram, 13 Ves. 235. In 
1 Harris. Ch. Pr. by Newland, p. 30 (1808), it is said, that to a Bill for 
the sale of mortgaged property, the personal representative of the mort- 
gagor must be a party ; for the personal estate must be first applied and 
exhausted, before the Court will decree the real estate to be sold ; and for 
this is cited a MS. opinion in Daniel v. Skipwith. The same point was 
decided in Christopher v. Sparke, 2 Jac. & Walk. 229. What is the 
true ground of this distinction between a decree to foreclose, and a decree 
to sell ? Ante, § 175. 



CH. IV.] PARTIES TO BILLS. 231 

possessed of a term of years, which he has mortga<;e(] ; 
for in such a case, the equity belongs to the personal 
representative,' and i)aynicnt is sought out of the per- 
sonal assets;^ or where the Bill seeks not only a fore- 
closure, but a decree against the personal represeiit<i- 
tives for any deficiency in the estate to pay the debt.' 
If the mortgage comprises both freehold and leasehold 
estates, the heir and the |)ersonal representative must 
both be made parties to the Bill to foreclose, as indeed 
they would be to a Bill to redeem/ 

^ 197. Where the mortgagor has conveyed his 
equity of redemption absolutely, the assignee only need 
be made a i)arty to the Bill to foreclose. If the mort- 
gagor has devised, or conveyed the mortgaged property 
in trust, the trustees, as well as the cestuis que trust (or 
beneficiaries), are necessary parties to the Bill to fore- 
close.' If he has assigned the equity in the different 
estates mortgaged to several persons, they must all be 
brought before the Court as parties, if the foreclosure is 
sought of all the estates.^ So, if the mortgagor has 
assigned his equity absolutely to several [>ersons jointly, 
they must all be made parties.^ If the mortgagor has 
become bankrupt, and his estate is assigned under the 
bankrupt laws, his assignees only need Ije made parties 
to the Bill.' 

^ 198. Where the mort<ragor has devised his estate 

> Bniishaw r. (Mitram, 13 Vea. *J:i:i. 

* Bradshaw r. Oiitrnm, 13 Vrs*. *J35; ('holmdndrlcv r. Clinton, 2 Jar. 
St Walk. 135. 

' Leonard v. Morris, t) Pai(?r, R. !N). 

4 Rohina v. HodjriHin, ritra 1 HarrtH. Th. Pr. hy Scvi\. 30 (HOH); 
Ante, i IH2. 
^ Giflard v. Hon, 1 Srh. Al lAifr. 3H> ; Post, 6 ^07. 

* Ante, § 1(^2. 
7 Ibid. 

* Adama w. Hulhrook, 1 Harris. Ch. Pr. by Nvwl. 30 (|nOk); Ante. 
4 189. 



232 EQUITY PLEADINGS. [CH. IV. 

in strict settlement, it will be sufficient to bring the 
persons entitled to the life estate, and other prior in- 
terests, and the persons in esse, who have the first 
estate of inheritance, before the Court.^ And where 
the estate is entailed, it is sufficient to bring the first 
tenant in tail in esse before the Court, if there be no 
prior estates ; for in such cases he is treated, upon the 
principles already stated, as sufficiently representing 
all the interests of all the persons claiming in privity 
under the mortgagor, in a Bill to foreclose.^ 

^ 199. Secondly; let us next consider, who are the 
proper parties, as plaintiffs, to a Bill to foreclose. And, 
generally, it may be said, (as has been already stated,) 
that all those, who have an interest in the mortgage, 
and may be affected by the decree, are proper parties.* 
If the mortgagee alone has any interest, he is, of course, 
the only necessary party. If the mortgagee has made 
an under mortgage, as a security for a smaller sum than 
is due on the mortgage, and the under mortgagee 
brings a Bill to foreclose, the original mortgagee is a 
necessary party ; because the latter has a right to re- 
deem the under mortgagee ; and thus, also, a second 
account of what is due upon the original mortgage is 
prevented.^ If the mortgagee has assigned the mort- 
gage absolutely, the assignee or assignees only seem to 
be indispensable parties.^ 



1 Blount V. Earl of Winterlon, 1 Harris. Ch. Pr. by Newl. 29 (1808) ; 
Cholmondeley r. Clinton, 2 Jac. & Walk. 133. 

a Ante, § 144-146; Yates v. Hambly, 2 Atk. 238; Reynoldson v. 
Perkins, Ambler, R. 563; Gore v. Stackpole, 1 Dow. R. 18; Hopkins 
V. Hopkins, 1 Atk. 590; Cholmondeley v. Clinton, 2 Jac. & Walk. 133; 
Fish wick v. Lowe, 1 Cox, R. 411. 

3 Ante, ^ 193 ; Call v. Mortimer, 1 Harris. Ch. Pr. by Newl. 30 
(1808) ; Leonard v. Morris, 9 Paige, R. 90. 

* Hobart V. Abbott, 2 P. Will. 643 ; Cooper, Eq. PI. 37. 

5 Lewis r. Nangle, 2 Ves. 231 ; S. C. Ambl. R. 150; Ante, § 153. 



CH. IV.] PARTIES TO BILLS. 233 

^ 200. If the mortgagee is dead, his personal repre- 
sentative is the proper plaintiff to bring the Bill ; for, 
ordinarily, the mortgage money belongs to the i)er- 
sonal assets, and draws after it the mortgaged estate, 
as an incident.^ But if the mortgage be of a fee, the 
heir also of the mortgagee is a necessary party (either 
as plaintiff, or as defendant); for he is the owner of 
the legal title, although but a trustee for the personal 
representative ;' and, if the mortgage is redeemed, he 
alone is competent to reconvey.' 

§ 201. And it may be generally stated, that all per- 
sons, who have the legal interest in the mortgage, as 
well as those, who have the equitable interest therein, 
are necessary parties to a Bill to foreclose. There 
can be no redemption or foreclosure, unless all the per- 
sons entitled to the whole mortgage money are b<.*fore 
the Court. Thus, for example, a person, entitled to a 
part only of the mortgage money, cannot file a Bill to 
loreclose the mortgage as to his own part of the mon- 
ey ; hot all the other persons in interest must l)e 
made parties/ So, if the mortgage has been made to 
a trustee in trust, all the cestuis que trust (or l)enoficia- 
ries) should be made parties, as well as the trustee, to 
the Bill to foreclose.^ 

§ 202. Upon the same ground, if the mortgagee, or 
his assignee, has by deed or will setded the mortgaged 



1 Freake r. lIonK y, 2 Freem. R. ISO ; S. C. 2 Vq. Abrid^r. 77; 1 (')i. 
Cu. 51; Bradahaw v. Outrun, 13 Yes. 234. 

' Seoct V. Nicdll, 3 Kuss. 47ri; WckmI o. Williamn, 4 Madi). U. Ihi; ; 
Clarkaofi v. Bowycr, 2 Vcrn. fi7; Meeker v. Tanton, 2 Ch. (as. 2!i ; 
Ante, 4 74, a. 

3 Ibid. 

4 Palmer V. Earl of Carlinle, 1 Sim. & Stu. 42fi; Win(( v. DavJH, 
7 Greenl. R. 31 ; Ixiwe v. Morf^an, 1 Uru. Ch. R. 3«8. 

A Woodff. Williams, 4 Madd. R. im; Imwe v. Monran, 1 Hm. i'h. 
R. 368. But aee Montgomorie v. Karl uf Bath, 3 Ves. 5G0; Post, § 207. 

EQ. PI.. 30 



234 EQUITY PLEADINGS. [CH. IV. 

estate in strict settlement, the first person in esse^ en- 
titled to a vested estate of inheritance in remainder, 
and all persons entitled to prior estates, and their 
trustees, if there are any, are necessary parties to the 
Bill of foreclosure.* 

^ 203. Sixthly, in cases of Legacies and Charges un- 
der Wills.^ We have already had occasion to antici- 
pate much, which would be appropriate to this head, 
and to state, that in the case of a pecuniary legacy, no 
other person, except the executor, is ordinarily a neces- 
sary party to a Bill to enforce the payment of it out of 
the assets.^ But if there is a deficiency of assets, and 
it so appears by the Bill, the Bill should either make 
all the other legatees parties to the suit by name, 
or it should be brought on behalf of all of them ; so, 
that they may have their rights ascertained, and 
otherwise have the benefit of the decree.^ So, where 
several legacies are given, which are to be increased 
or diminished according to the state of the funds, it is 
proper, that a Bill, filed by one legatee, should be on 
behalf of all.* 

^ 204. We have also seen, that where the residue 
is bequeathed to several legatees, all of them should 



1 Blount V. Earl of Winterton, 1 Harris. Ch. Pr. by Newl. 29 
(1808); Ante, ^ 144-147. 

9 See Calvert on Parties, ch. 3, ^ 4, p. 172- 175 ; Edwards on Par- 
ties, 136 - 140. 

3 Ante, § 105, 138, 139 ; Wiser r. Blachley, 1 John. Ch. R. 438 ; 
Peacock v. Monk, 1 Ves. 127 ; Mitf. Eq. PI. by Jeremy, 168, 171 ; 
Wainwright v. Waterman, 1 Ves. jr. 312 ; Lawson v. Barker, 1 Bro. Ch. 
R. 303 ; Attorney-General r. Ryder, 2 Ch. Cas. 178 ; Court v. Jeffrey, 
1 Sim. Sl Stu. 105. 

* Ante, § 100 ; Brown v. Ricketts, 3 John. Ch. R. 553 ; Fish v. How- 
land, 1 Paige, R. 20; Egberts v. Wood, 3 Paige, R. 517, 520; Mitf. 
Eq. PI. by Jeremy, 168. 

^ Brown v, Ricketts, 3 John. Ch. R. 553. But see Haycock v. 
Haycock, 2 Ch. Cas. 124. 



CH. IV.] PARTIES TO BILLS. 235 

ordinarily be made parties, either by name, or by a 
suit in behalf of all ; and, that the same rule applies to 
the case of distributees, claiming in a case of intesta- 
cy ; for in such cases there is a common interest in all 
of them.' Upon these points, therefore, we need not 
dwell. For the like reason, where there are various 
appointees of personal property under the will of a 
Jemit cavertj they should all be made parties to a Bill 
against her personal representative, to enforce their 
claim.* 

§ 205. Where legacies are by a will made a charge 
on the real estate in the hands of the heir or devisee, 
the heir or devisee entitled to the real estate must of 
course be a party to any Bill to enforce the charge ; 
and the executor also must be a party, if the personal 
assets are not exonerated from the charge, as the pri- 
mary fund.' To such a Bill, all the legatees, who are 
entitled to the benefit of the charge, are also proper and 
necessary parties in their own names ; for they all 
have a common interest in the fund/ If there are any 
exceptions to the rule, they stand upon very i)cculiar 
grounds, which must be specially brought before the 
Court ; and then, perhaps, a Bill might be maintaina- 
ble in the name of one or more of the legatees, on 
behalf of all.' 

> Ante, § lot, 105; Post, § 207, 207, a ; Hallett v. Hallett, 2 Paige, 
R. 15 ; Shcrnt r. Birch, 3 Hro. VU. K. 22!). 

' Coart V. JcnVcy, 1 iSim. & »Siu. 10/>. If the ap|Hiiiiici*8 iiiiii(*r the 
will ire fery numcrouii, the Court will disiMinae with their licirif^ nindo 
pwtiet, and alluw a Hill to be filed by some on buhalf uf all. Manning f. 
Thenger, 1 Sim. & fStu. lOfi. 

' See Ante, { 103, KSl, and ttie Orders in Chancery of 1H41, cited 
i IfiO, note. 

4 Mone V. Sadler, 1 Tux, U. 3.V3 ; Hallett w. Hallett, 3 Paiffe, K. 15, 
89; Fiah v. Howland, 1 Paige, U. 23 ; Ante, ^ 150, 101 ; Punt, § 215, 
916; HarriMHi v. Stcwardaon, 2 Hare, K. 531), 532. 

> Aflte, f 105, and note, 150, 104 ; Post, $ 207, a, 907, 6, 215, 318 



236 EQUITY PLEADINGS. [CH. IV. 

^ 206. For the same reason, where by a will the 
executors are made trustees to sell the real estate of 
the testator, and out of the produce, after the discharge 
of debts, to pay certain sums to certain legatees, 
which sums are also charged on the personal assets, in 
case of a deficiency of the real fund ; on a Bill brought 
by one of the legatees, to obtain his share of the pro- 
ceeds, from the executors, all the other legatees are 
necessary parties.* 

§ 207. Seventhly, in cases of Trust.* The general 
rule in cases of this sort is, that in suits respecting 
the trust property, brought either by, or against the 
trustees, the cestuis que trust (or beneficiaries), as well 
as the trustees, are necessary parties. And where the 
suit is by or against the cestuis que trust (or beneficia- 
ries), the trustees also are necessary parties. The 
trustees have the legal interest, and therefore they are 
necessary parties. The cestuis que trust (or beneficia- 
ries) have the equitable and ultimate interest to be af- 
fected by the decree, and therefore they are necessary 
parties.^ Indeed, in England, the general rule is, that 
if property is given to trustees for certain cestuis que 
trust (or beneficiaries) , a Court of Equity will decree 
it to be paid to the latter, and not to the trustees ; so 
that the beneficiaries are emphatically the direct par- 

Hallett V. HaJlett, 2 Paige, R. 15, 32, 23 ; Manning v. Thesiger, 1 Sim. 
& Stu. 106. See Harrison v, Stewardson, 2 Hare, R. 530, 533 ; Ante, 
§ 150; Post, ^ 316. 

1 Faithful V. Hunt, 3 Anst. R. 751. But see Ante, § 150 and note, 
and the Orders in Chancery of 1841, Orders 30 and 31, there cited ; Ante, 
§ 163 and note, 164, 305. 

9 See Calvert on Parties, ch. 3, § », p. 308 - 330 ; Edwards on Parties, 
158-167. 

3 Cooper, Eq. PI. 34 ; Mitf. Eq. PI. by Jeremy, 176, 179 ; Adams v. 
St. Leger, 1 B. & Beatt. 181, 184, 185; Court v. Jefirey, 1 Sim. & Stu. 
105 ; Wood V, Williams, 4 Madd. R. 186 ; Burt «. Dennet, 2 Bro. Ch. 
R. 335 ; Osboum v. Fallows, 1 Russ. & M. 741 ; Malin v. Malin, 3 John. 
Ch. R. 338; Fish v. Rowland, 1 Paige, R. 20 ; Ante, § 150, 301, 304-306. 



CH. IV.] PARTIES TO BILLS. 237 

ties in interest.' For a similar reason^ all i)ersons, 
who have specific charges on trust property, derived 
under the trust, and ap{)ertaining to the due execution 
of it, are generally required to be made parties to suits 
respecting the due execution of the trust, or touching 
their rights therein, whenever the persons are definite- 
ly ascertained, and the trust is of a limited nature.^ 

§ 207, a. There are, however, some exceptions to 
the rule, as we shall presently see. Thus, for exam- 
ple, if each puTty is entitled to an aliquot part, such 
as a quarter or a half of an ascertained and definite 
trust fund, in such a case he may sue for his own 
portion thereof without making the other cestuis que 
trust (or beneficiaries) parties, for there is no com- 
munity of property, or other matter, in virtue of which 
ihey have, or can have any interest in the suit or 
subject of the suit.' So, wherever a great practical 
inconvenience would arise from a strict application of 
the general rule, there the Court has power to relax 
it, in order to prevent that, which is laid down for 
the purposes of justice, from working the contrary; 



1 Weatherby v. St. GiorjErio, 3 Hare, G2t, 620; Ante, § 11!), 150; 
Port, §415-217; Baker v. Harwood, 1 Hare, R. 3*27; Hullaiid r. Da- 
ker, 3 Hare, R. CO. In this last case, Mr. Vicc-Ohancvllor Wijirain 

id ; *' Now prima facie I take it to Ix; the duty of trustees, beirij; par- 
lo m Dill aflfrctin^ the trust pro{)crty,tn insist, that the rrntuis i/uc trust 
■bouM be brouj^ht liefurc the f'ourt. Trustees arc nut thein»clvi's owners 
of tbe property ; they are, in a simim;. a;;ents for the owners in executing 
Uie tffiiflia; but they arc not conMitnt*.*d a(v<MitM f(»r the puqtose of del'mdin^ 
Um owocn against the adverse claims of third particR in this Court. It 
M ifae duty of trustees in such a .^tituatiun to o)»ject, that the ownerH of tho 
ostBte are not before the Court ; and 1 think it is the right of truMees in 
that eMa to inaiat. that the onus of resistinf^ adverse claims shall )>c thrown 
upon tbe ecMtuis que trust, and not on themselves.** 

* Mitf. Eq. PI. by Jeremy, 17(i; Ante, 4 1^0 i Harrison v. Steward- 
aoo« 9 Hare, R. 53u. 

3 Poat, ^212; Hutchinson r. Tancred, S Keen, H r>7.'>; Morley w. 
RcjDoUaoo, 3 Hare, R. 670 ; Smitli v. ^>now, 3 Madd. R. 10. 



238 EQUITY PLEADINGS. [CH. IV. 

as, for example, where there is a small property to 
be divided among a large number of cestuis que 
trusty who are foreigners resident abroad. The like 
exception would seem to apply, where the cestuis que 
trust (or beneficiaries) are very numerous, or the de- 
scription of them is so general, that it is difficult or 
impracticable to ascertain, in the first instance, who 
are all the persons included therein, or many are 
unknown, or are resident abroad. Under such cir- 
cumstances, the proper inquiries may be directed to 
be made before a Master before the final decree.* ^ 

§ 207, b. This last position may be illustrated by 
the case, where the class of persons interested and en- 
titled to share in the property are very numerous, as 

^ Ibid. ; Hawkins v. Hawkins, 1 Hare, R. 543, 546 ; Ante, § 94 ; 
Post, § 208, 217; Harvey r. Harvey, 4 Beavan, R. 215, 220, 221. See 
Ante, § 163, note ; Holland v. Baker, 3 Hare, R. 68. In this case, Mr. 
Vice-chancellor Wigram said ; '^ I have said that it is the daty of the 
trustees to require, that all their cestuis que trust should be before the 
Court. If the Court is to dispense with the presence of any number of 
them in order to avoid the inconvenience of bringing so large a body of 
creditors before the Court, it seems of necessity to follow, that the trustees 
of the property, upon which the Court is to act, should be parties to that 
record, that they at least might be able to inform the Court, whether it is 
sufficiently framed with reference to the interests of the whole of the ces- 
tuis que trusty by the selection of those, who, in the existing state of things, 
are in a position adequately to represent the interests of the body. I do 
not doubt, that the Court does allow a selected number to represent a nu- 
merous body of defendants, whose interests are sought to be adversely 
affected in a suit. Lord Eldon repeatedly said it might be done, if the 
purposes of justice required it ; and Lord Cottenham, in Attwood v. 
Small, afler saying, that the right course was to bring all parties before 
the Court, observed, that courts of justice are bound to have regard to the 
mode in which the affairs of mankind are conducted ; and when, in conse- 
quence of the mode of dealing, it would be impossible to work out justice, 
if the rule requiring all persons to be present were not departed from, it 
must be relaxed, rather than be allowed to stand as an obstruction to jus- 
tice. I shall not be in the least degree deviating from that rule in this 
case by holding, that, so far as the supplemental Bill is concerned, the 
trustees ought to be parties, where a few of the creditors are cho- 
sen to represent the whole." 



CH. IT.] PARTIES TO BILLS. 239 

for example, in case of residuary legatees, who are 
very numerous ; there the rule, whether all or part of 
them shall be inserted in the suit, is a question of 
mere convenience, to be decided by the Court ; and, 
in many cases, the Court will permit a few of the re- 
siduary legatees to sue in behalf of all.^ 



* Hairey v. Harvey, 4 Bcavan, R. 215, 220, 221. In this caso, Lord 
Lui|rdale said ; *'Tbc principal point, which arose for decision, in this 
case, was, whether a legacy, gfiven by the will of the testator, aflcr the 
death of the tenant for life, to a class of persons not now ascertained, but 
who aie to be ascertained upon the death of the tenant for life, was void 
for remoteness. Two objections for want of parties were taken )>y the 
defendant. The first was, that it was not coini>ctent for the plaintifT to 
sue ' on behalf of herself and all others,' who were in the like interest; 
for, as some questions might arise between them, the suit could not be 
sustained, anless all the persons who had presumptive rights to a share of 
this legacy were before the Court. Questions of this nature, whether 
eertain persons so circumstanced arc or are not indispensable parties to a 
suit, are very much questions of convenience ; and in this case, I urn of 
opinioo, that though some inconvenience may arise, in not having all tlm 
parties presumptively entitled before the Court; yet that such ineon- 
▼enience would be considerably less than would necessarily arise, from 
requiring them to be made parties in this stage of the cause ; and wliich 
would probably amount to a complete obstruction of the suit, and would 
render it impossible ever to bring it to a hearing. My opinion is, that the 
first objection must therefore fail. The other objection for want of ])ar- 
ties is this; it being a question, whether the legacy is void for remotcnesH, 
it may happen, that the next of kin have an interest in the legacy. That 
the next of kin will be convenient or proper parties, provided they can bo 
bad here without inconvenience to the other side, is a matter of no doubt. 
The plaintifl* herself has considered, that they would be pniper parties ; 
because she has made one of the next of kin, and another person, who is 
both heir at law of the testator and legal personal representative of an- 
other next of kin, defendants; and the widow, who would be entitled to 
a share of the legacy in case of intestacy, is also a defendant. Tlii^ 
plaintiif alleges, that thore arc now sufficient persons here to ar>.Mie tin* 
question, or to maintain the interest of the next of kin. This, n<?ain, is 
a state of things, in which the Court may consider a suit pro|M>rly mnHti- 
tnted on the gmund of cunvenirnce ; and, looking with that virw, at tin! 
allegations contained in the bill and the answer, it does not nnw upprnr 
known, that there willtic a pn']N)ndr rating inronvrni**ncc by brin^Mng tlm 
nest of kin before the Court. I am thcn'fore of opmion, that the cause 
eaaoot proeeed without some further ini|uiry respecting the ne\t of kin ; 



240 EQUITY PLEADINGS. [CH. IV. 

§ 208. Upon the general principles of Courts of 
Equity, there would be an impropriety in binding 
either the legal claimants, or the equitable claimants, 
unless they were fully represented, and permitted to 
assert their rights before the Court ; and, if not bound, 
the decree would not be final on the matter litigated. 
If the cestuis que trust (or beneficiaries) should not be 
made parties to the suit, and their interests are appa- 
rent, a Court of Equity will sometimes, as a matter of 
indulgence, and to prevent further delay and expense, 
allow them (if they wish) to bring forward their claims 
by petition, in order to have their interests ascertained, 
and their rights protected.^ But, at all events, they 
may bring a Bill against their trustees and the original 
plaintiff, to assert and protect their rights in the other 
suit.* 

§ 209. Upon this ground it is, that if a Bill be 
brought by a cestxd que trust for a specific performance 
of a covenant under seal, made unto a trustee for the 
benefit of the plaintiff, the trustee must be made a 

and, upon this occasion^ I must order an inquiry, who are the next of kin, 
and who are the legal personal representatives of such of the next of 
kin as are dead. I make no other order ; because, in the end, it may 
turn out, when we know, who are the next of kin, that it would be neces- 
sary, or at least proper, for the plaintiff* to proceed, even in the absence 
of the other next of kin. The question, which I determine, in the pres- 
ent stage of the cause, is this, that there is nothing upon which I can act, 
to show, that there would be a preponderating inconvenience in bringing 
before the Court the other next of kin, or their representatives. There 
must be an inquiry before any further steps can be had." See Weather- 
by V. St. Giorgio, 1 Hare, R. 629. But see Hawkins v. Hawkins, 
1 Hare, R. 543; Ante, § 104, 105; Batten v. Parfitt, 2 Younge & Coll. 
New R. 343. 

1 Drew V. Harman, 5 Price, R. 319, 324. 

3 Creagh v. Nugent, Moseley, R. 355, 356. Though there are ever 
so many contingent limitations of a trust, it is an estabUshed rule, that it 
is sufficient to bring the trustee before the Court, together with him in 
whom the first estate of inheritance is vested. Hopkins v. Hopkins, 1 
Atk. 590; Cholmondeley v. Clinton, 2 Jac. & Walk. 133. 



CH. IV.] PARTIES TO BILLS. . 241 

party to the suit.^ So, if a Bill should be brought by 
a cestui que trusty to foreclose a mortgage given to a 
trastee for his benefit, the trustee should l)e made a 
party.^ So, if a cestui que trust should bring a Bill 
to enforce the trust, against a third person, to whom 
the trustee has assigned the property in violation of 
the trust, the trustee should be made a i)arty ; for he 
is ultimately bound for the due fulfilment of the trust.^ 
On the other hand, if a trustee should bring a Bill for 
a specific performance of articles, the cestuis que trust 
should be made parties/ So, if a Bill for the redemp- 
tion, or a Bill for the foreclosure of a mortgage, should 
l)e brought against a trustee, the cestuis que trust are, 
in each case, necessary parties/ 

^ 210. And, where there are divers trustees, in a 
suit to enforce the trust, or to set it aside, all the trus- 
tees should be made parties ; for all of them have a 
communitv of interest ; and otherwise there miuht be 
diflfercnt suits brought bv or as^ainst e<ich : and, uiidiT 
ordinary circumstances, the Bill will not be maintained, 



" Cooke V. Cwke, 1 Vern. R. 3«; Coin; r. Parry, 2 Jar. & Walk. 
538; Hook v. Kinnuar, 3 Swaii.nt. R. 417, noto. 

* Wood r. Williatiut, 1 MaHd. R. IHO. Where the oripiiial triistrrs, 
having the lepal esLite, and all tho crstuis qur trust, haviiifi; the bnirficial 
inlerciit, are hcfurc thr Court, in termed iate trust res for the benefit nf the 
latter arc said nut to tie nec'e^sary parties. Head v. L<ird Teyiihain. 
1 Cox, K. 57. What is the (rround of thi.s distinetion, siiiee tiie interme- 
diate trustees have, or may havp, an ri|iiituhh* interest, either prini:iry or 
MCftiidary* A pf-r»on. with uhom a tnn»t deed has heen depoMird. and 
who haa dvlivend it up 14) the original party, who executed ii. if nut 
charged with a brearh of truist, need not he made a parly to a Hill liv the 
rrj/ifij yitf trust tVir a s|N'eifie pi'rformanec of the trust, and a rrdi hvery 
to them of the deed. Kyne r. Minire, 1 Sim. ic Slu. ft; Ante, 'J '^07. 

' Burt r. Dennei. 'J Bro. Ch. R. *JiJ5; Antr, § 207. 

< Kirk r. Clark. Pree. Ch. •J75 ; Doujrlas v. Iforsfall, 2 Sim. A: Stu. 
IM ; Malin r. Malin, 2 John. Ch R. 23H; Ante. $ 207. 

A CaWerley r. Pbelp, ti Madd. R. 22i»; Whihtler r. Wehb. Runh. 
R. 53; Ante, 4 207. 

EQ. PL. 31 



242 EQUITY PLEADINOS. [CH* IV. 

without all of them are so joined.* For a similar 
reason, if there are divers cestuis que trust, all of them 
should be made parties to a Bill touching the common 
interest.^ 

^211. Where any of the trustees are dead, the sur- 
vivor or survivors of them must be made parties to a 
suit respecting the subject-matter of the trust.' And if 
all the trustees are dead, and the estate is an estate of 
inheritance, the heir, or other proper representative in 
the realty, of the survivor, should be made a party. 
But if the trust be of a term, or other chattel interest, 
the personal representative of the survivor only need 
be made a party .^ If the trustee has assigned his trust 
absolutely, the assignee should be made a party in his 
stead ; and the trustee need not be made a party, un- 
less the assignment is a breach of trust.^ If, pending 
a suit, some of the truste.es of a charity should die, 
and others resign, and new trustees are appointed be- 
fore any decree, they ought to be made parties to the 
suit ; otherwise, as they come in under the founder, 

1 In Re Chertsey Market, 1 Price, R. 261. 

9 Hamm v. Stevens, 1 Vern. 110 ; 1 Eq. Abridg. 72; Lowe v. Mor- 
gan, 1 Bro. Ch. R. 368, and Mr. Belt's note; Ante, § 149, 150, 207; 
Post, §213,216, 217; Harrison v. Stewardson, 2 Hare, R. 530; Weath- 
erby v. St. Giorgio, 2 Hare, R. 624, 626; Hawkins v. Hawkins, 1 Hare, 
R. 543, 546. But see Montgomerie v. Marquis of Bath, 3 Yes. 560. 
In Goodson v. Ellison, 3 Russ. R. 583, where a Bill was brought by a 
purchaser of a portion of the trust property from the cestuis que trust 
against the trustee for a conveyance of the legal title. Lord Eldon at first 
thought, that all the cestuis que trust should be made parties to the Bill, 
and that the trustee was not bound to convey a portion of the estate ; but 
was entitled to be delivered from the whole trust. But afterwards a de- 
cree was made without their being made parties. It is not very easy to. 
perceive, from the report, how Lord Eldon escaped from his original diffi- 
culty ; for no reason is given for his change of opinion. 

3 See Post, § 213. 

4 Cooper, Eq. PL 34 ; 1 Eq. Abridg. 72. 

5 Cooper, Eq. PI. 34 ; Bromley v, Holland, 7 Ves. 3, 11 ; S. C. Coop- 
er, R. 19 ; Ante, § 153 ; Burt v. Dennet, 2 Bro. Ch. R. 225. 



»-«Elu 



£ 



CH. IV.] PARTIES TO BILLS. 243 

and not under the former trustees, for whom they are 
substituted, they will not be bound by the decree.^ 

^ 212. There are, however, certain qualifications of 
the general rule, some of which have l)een already 
incidentally noticed, either standing upon distinct prin- 
ciples, consistent with the rule itself, or admitted as 
just exceptions to it. In the first place, if there is a 
certain and fixed trust fund, and each cestui que trust 
has a certain aliquot part in it, distinct from the others, 
so that there is no common interest in the object of 
the Bill, the others need not (as we have seen) be 
made parties.' Thus, where the object of a Bill, 
brought by an assignee of one seventh part of an as- 
certained fund, standing in the name of trustees, was 
to compel the latter to transfer to hiin his seventh jiart 
in the trust fund, it was held, that the cestuis que trust 
of the remaining six seventh parts wxre not proi)er 
parties, and a demurrer by them on that account was 
allowed.' 

^ 213. In the next place, if there are several trus- 
tees, who are all implicated in a common breach of 
trust, for which the cestui que ti'ust seeks relief in 
Equity, he may bring his suit against all of them, or 
against one of them sejKirately, at his election ; ^ for, 



I Aunrncy-CjciiuRil v. F^imtcr, 3 Ilarc, R. »!. 

* Ante, §S207, a ; Smith v. 8now, 3 M:ul<1. H. 10. 

' Smith •. Snow, 3 Madd. R. H) ; AiiU\ $ 207, u; Perry v. Knoll, 
5BeiTmn,R. 203. Sec Mniii{!oinpric v. Manjiiis of Hath, 3 Vcs. 5<i0, and 
l4>we V. Morjran, I Hn>. Ch. R. 3r»H, and Mr. Helt'a note ; Ante, <J 2U7 ; 
HutrhiDsno v. Tanrrcd, S Keen, R. 075. 

* Wilkpr 9. Synifinds, 3 Swansi. R. Tfi ; Franco v. Franco, 3 Vrs. 75 ; 
Rx parte Angle, Harn. f'h. R. 1*23; S. C. 3 Atk. 103; WilkiuHon v. 
Pany, 4 Rnsiiell, R. 27*2, and Mr. RuhaoH's note; May r. Si>lby, 
I Younire & (.'ull. Npw R. 231». Hut in Munch v. Ccickerell, h Sim. R. 
210, the Vice-C*hancL'Ilnr held ihi; contrary doctrine, and that all bhould 
be joioed. Sec Ante, $ 70, A; Post, $ 211 and note. Whether ihi* 

ii mainlaiDible in opposition to the other authorities, may admit of 



244 EQUITY PLEADINGS. [CH. IV. 

in such a case, the tort may, by analogy to the law, be 
treated as several, as well as joint. Again ; if a Bill 



question. Why should not a cestui que trust be at liberty to waive his 
rights as to some trustees, and pursue them against others, where all are 
liable in solido? — See Post, § 214, a. It is but justice to the learned 
Vice-Chancellor, to give his reasoning at large in the case of Munch v. 
Cockerel], and to show the manner, in which he disposes of the language 
used in the former authorities. ** I have read," says he, ** through the 
report of Walker v. Symonds. Now that case itself affords one instance 
of what was thought at least to be the rule in the profession ; because the 
representatives of Donnithorne and Griffith, the two deceased trustees, 
were made parties, along with the surviving trustee ; and I observe, that 
Lord Eldon nowhere lays down the general proposition that, if there be 
three trustees, who have committed default, the suit may, at the option of 
the plaintiff, be brought against one only. He says no such thing ; but 
what he does say, is, that, when three trustees are involved in one com- 
mon breach of trust, the cestui que trust, suffering from that breach, and 
proving, that the transaction was neither authorized nor adopted by him, 
may proceed against any or all of the trustees. 3 Swanst. 75. But his 
lordship does not tell us whether, when he uses the words * may proceed,' 
he means, that they should apply to proceedings by suit, or to proceedings 
on a decree, which has been obtained in a suit. There is a difference be- 
tween bringing the suit, originally, against all that were defaulters, and 
then, when a decree has been obtained, proceeding on the decree against 
one of them only, and proceeding, originally, in framing the suit against 
one defaulter only. The language of Lord Eldon is so general on the 
point, that I do not take it to be a general authority for the proposition, 
that, where several trustees have made default, the suit may, at the op- 
tion of the plaintiff (unless there be special circumstances in the ease), be 
brought, originally, against one only. It may constantly happen, tliat 
there has been default in some trustees, affecting portions of the trust- 
fund ; but, if there be other trustees, that represent the fund, it is quite 
clear, that that, which is the fruit of the suit, must be restored as part of 
the fund, and must be handed over to the other trustees. Besides, it 
seems to me, that this proposition, which is stated to have fallen from Lord 
Eldon, was laid down, not with reference to any thing, which took place 
in the course of discussion prior to the pronouncing of the judgment, but 
when a discussion arose as to the form of the decree, after the substance 
of the judgment had been pronounced. And it seems to have been a very 
special case ; because Donnithorne, who was the principal defaulting trus- 
tee, died first ; and it appears that Isaac Harris, who was his representa- 
tive, had, by a sort of composition deed, amalgamated his own assets 
together with those of his father, so as to form a general fund for the re- 
lief of his father's creditors ; and Lord Eldon thought, that it would be 
exceedingly difficult for the plaintiff, Mrs. Walker, to proceed against the 



CH. IV.] PARTIES TO BILLS. 215 

is brought by ono trustee a^^ainst the other to eoinpel 
the latter to rephice the trust stock, or to give s<Turiiy 



aaaeU of Nicholas Doiiiiithornu« wiiliout abandoning her claim against the 
other two; and bhc could not vrry well rro on afraiuHl the other two with- 
out abandoning her rlaini n«;ainst the ansets of Nicholas Doiinithornc. 
And, with reference to a Miito of rimimstanres so very singular as those 
inihitcasc, his lordship did assert the general propoi^ition, wiiich is at- 
tributed to him in the report; and he did, in point of fact, do this; ho 
dismissed the Bill as at^ainst Isaac Harris, without msts, and allowed the 
plaintiff to po on against thi; other two trustees, taking care, that it should 
be inserted in the decree, that all demands which Mrs. Walker might 
have under the trust-deed, or a^rainst the assets of l)onniihorne,as assets, 
the surnving trustees would he entitled t<» enforce for their own benefit. 
See 3 Swanst. 8U. That was entirely u]H)n the si)ecial circumstances of 
the case. The case of Wilkinson t;. Parry, i Huss. '27*2, furni>hes an- 
other instance of what was the opinion of the party, who prepared the Dill 
in that case : for not only was Nicholson, wiio was the defauliiiifr trus- 
tee, made a party, but Sherwin also was made a party. In that case, the 
Master of the Rolls did not say, that it was comi»eient to tlie plain titFs, at 
their own option, to proceed against Nicludson only; but that, if Sherwin 
had been made a party, no reli(.>f could have b(M>n had against him. The 
Bill was filed against Nicholson and i*arry ; and the objertion was. that 
Sherwin was not a party ; but the Master of the Utdls said, that, if SIht- 
win had been made a party, the Bill must have Ihtii dihmiswd as against 
him. The circumstances of that rase were as follows: NirhoUon and 
Parry were originally trustees, and Nicholson became desirous of rt.'tiring 
from the trust, and Shi.Twin \ias appointed a trustee in his place, and 
executed the deed ; but, before ht; acted, he intimated a wish to Imj dis- 
charged from the trusteeship; and then the deed was actually prepared, 
appointing Parry to be sole trustee; but that deed uas not executed by 
Sherwin. But what was the siK.'eial circumstance in that cilsi; ? Sherwin 
was a trustee, ami he never had aeted ; and \\w Master of the Roll.**, by 
saying that the Hill must Im> dismissed as a<;ainst him, took that view of 
the rase. That case is no authority vihatever for staling, that, when* 
compUint might lawfully l>e made aijainst nw of th«* tniMiT!*, it is n(»t 
necessary to makir the othris. against whom no roinplaint has bfcn made, 
parties to the Hill. It shows only, that, whi-n' a prrson had the rharacirr 
uf trustee, but, if* fa* to, was not a trustei*, it was not n«-ce^sary to make 
him a party; and, inasmuch as the Hill \k:ls filed not ai;aiiist Nicholson 
only, but against Nieholsun and Parry, it is oni' example, amon>!st many 
olben, of the ni^cesnity of making all the trusli.'es parties. In the rr|Mirt 
of the case of Walker r. Syinonds, iiistanei's are giv«'n, in the notes, to 
prove a proposition uhieh, I should have thought, hardly rerpiirtd priNif, 
namely, that certain acti«, mentioned in th*; notes, may lie considered as 
deiaulto, for which the trustee may be liable. Hut in the very first of 



246 EQUITY PLEADINGS. [CH. IV. 

for it according to his own engagement solely with the 
other trustee ; in such a case the cestuis que tfmst need 



those cases, the case of Bradwell v. Catchpole, Mayhew had disappeared, 
but had never answered, nor could he be found to be served with the 
process of the commission of rebellion ; and, as he had not been served 
with a subpcena to hear judgment, there could be no decree against him ; 
but the process of contempt having been carried on against him to the 
utmost extent, the other defendants could not object for want of parties. 
That admits, that, but for that circumstance, the objection might have 
been made. I see, that Mr. Russell, in his report of Wilkinson v. Parry, 
states, what the general rule is. He says ; ' Yet cases of breaches of 
trust seem to have been an exception ; and it has been held, that a cestui 
que trust may proceed against the surviving trustees alone, without bring- 
ing before the Court the representatives of the deceased trustee, who were 
involved in the same acts of misconduct.' Mr. Russell refers to the 
case of Ex parte Angle, Barnard, 423, S. C. 2 Atk. 163, and also to the 
decision of Lord Eldon in Walker v. Symonds, on which I have com- 
mented. But it does not appear to me, that Ex parte Angle justifies the 
general proposition, that it is competent to the plaintiff, at his option, to 
select only some of the trustees. It justifies the position, that Mr. Russell 
lays down, namely, that it has been so held; because it was so held in Ex 
parte Angle : but we must look at the circumstances of that case. The 
proceeding in Ex parte Angle, was founded on the statute 4 Ann, ch. 14, 
which regulated the way in which proceedings should be had, where, 
upon the petition of persons, who had suffered by fire and other calami- 
ties, undertakers were authorized to collect money for the benefit of the 
sufferers; and, in that case, it appeared, • that there were, originally, 
seventeen managers, and seven were dead ; and it was submitted, on the 
part of the survivors, that the representatives of the managers who were 
dead, ought to be brought before the Court. But Lord Hardwicke said, 
it was not necessary to bring those representatives before the Court, and 
that an order for accounting ought to be made against the survivors. If 
you look at the 4th section of the act, you will see, that it directs, that 
the undertakers shall, within two months, account before one of the Mas- 
ters of the Court of Chancery ; and that the Master shall have power, by 
the common methods of the Court, to examine into all frauds committed 
by the undertakers and their agents, or any other person concerned for or 
acting under them, and report the same to the Court ; which report, being 
confirmed by the Court, it shall be in the power of the Lord Chancellor 
to impose such fine and costs, on every such offender, as the nature of the 
case shall require. That, of course, implies that it was in the discretion 
of the judge to impose such fine and such costs on each or any of the 
parties, as the Court thought proper ; and, of necessity, it gives the Court 
the jurisdiction to proceed against some and omit others ; because it is 
useless to say, that the proceeding shall be against all, when it is in the 



CH. !▼•] PARTIES TO BILLS. 247 

not be made parties ; for they could not found any 
right on their own part U|)on any sucli engagement, as 
they could have no privity with it.^ 

^ 214. In the next place, the frame of the [)articu- 
lar Bill may also furnish a ground to dispense with 
persons, who should otherwise l)e made parties.^ Thus, 
for example, if a Bill is framed for a general account 
of a trust fund in the hands of trustees, all of them 
should be made parties. But if the Bill is so framed 
as only to seek an account of so much of the trust 
fund, as has come to the hands of a particular trustc^e, 
be alone is a necessary party,^ at least unless the Bill 



power of the Court to iinposr fmos and costs upon such only as the Tourt 
•bould think rif^ht. It appears to me, thrreforc, that this section of the 
■et did entirely justify IaiuI Hanlwicke in saying, tiiat it was not nrtvs- 
nry to brinfr the rt^prt'sentatives of the deceased parties t>efore tin* < 'oiirt. 
Bendei, it sorms, that, under the act, the Tuurt niipht priM^ced in a ^uin- 
niry way, and might dis|)enHG witti the apiM?arancc of sonu.' of ttie 
ofleodert. The act, indeed, imposed certain forfeitures, and a forfeiture} 
mifrht haYe been recovered from the representatives of those, who were 
dead. Bat it mi(?ht have tM;en thnutrht ineonvfuient, hy tliat learned lord, 
that any action should l>e directed against the repn.'sentatives of those 
who were dead ; and, therefore, he d(;tnrinined to imfMiM: the fim^s and 
cotta on those only, who were alive, and Xo enforce payment of ttieiii hy 
the proceM of the (*ourt. It seems to me, therefore, that the position 
laid down by I^rd F^.ldon, in Walker r. Symonds, does not support tht; 
feoeral proposition contended for; and thf whole practice of tlie pro- 
fi M J on is, I believe, airainst it ; and, therrfi)ri\ my opinion is, iliat, in 
this particular case, the r«'pr«>tH'ntati\es of ]\vclyn and I^i£;nn. oiiglit to 
he made partirs." S^e Antf. ^ 1127, 1*J!). 13«», *J11; PoM. v^ JIl, *J-JH. 
In Cunningham v. Pill, 5 rji|;«', (i07. it was held, that the dinrtors ni' 
a corporation were liable to the stockholders in f^iuity for a framhih-nt 
bfpach of trust ; and, that a suit miijrht Im* brought against vouw of tlii> 
dirvdora fur such breach of trust, without making all the direetors 
parties. 

* Franco V. Franco, 3 Vcs. 7:j ; Ante. J l.TJ; Csilverton Parties, eh. I, 
♦ 1,7, 8; Poat, ^a'Jl.J-JH; May r. Sclhy, I Younge & Coll. New U. 

• Ante, 4 P27, 120, 13U; Pniit. ^^ *JM, 2t2H. 

' Belyard r. Harris's Kx'ors, 1 Va\. Abridg. 71 ; Ante, { V2K Sec 
MoBch V. Cockerell, H Sim. K. *J19. It has been suggested by a learned 



248 EQUITY PLEADING?. [CH. IV. 

should charge a breach of trust in all the trustees.^ 
So, if a legatee has received but part of his legacy, 
by. a misrepresentation of the residuary legatee, and 
the executor has paid over all the remaining assets to 
the residuary legatee, a Bill may be brought by the 
defrauded legatee for what remains due lo him against 
the residuary legatee and the representative of the 
executor, without making the representative of the 
testator a party.* 

^ 214, a. So, if a Bill should contain allegations, 
which show, that persons, who otherwise would ordi- 
narily be proper parties, have no interest in the contro- 
versy, and have no title to and make no claim to any 
interest, such allegations in the frame of the Bill, if 

writer in the London Law Magazine for May, 1839, p. 243, that it may 
be doubtful, whether Selyard v. Harris's Executors can be safely relied 
on as an authority, since Munch v. Cockerell. I do not feel the full force 
of the doubt. The cases are distinguishable. In the former case, a dis- 
covery was sought against the only trustee, who had transacted the busi- 
ness of the trust ; and the Lord Chancellor held, that as an account was 
sought only of what came to his hands, the representatives of the other 
trustees, who were dead, need not be made parties. There seems to 
have been no allegation of any joint breach of trust. In the latter case, a 
breach of trust by all the trustees was relied on. But it seems to me, 
that the decision in Munch v. Cockerell cannot easily be reconciled with 
the doctrine of Lord Hardwicke in Ex parte Angle, Barn. Ch. R. 423, 
S. C. 2 Atk. 163, and of Lord Eldon in Walker o. Symonds, 3 Swanst. 
R. 75, notwithstanding the ingenious reasoning of the Vice-Chancellor. 
Ante, § 213, note. The same learned writer in the Law Magazine inti- 
mates, that the case of Selyard v. Harrises Executors was not a dispensation 
with necessary parties ; for the other trustees were not necessary parties, 
as the object of the Bill did not require any relief from them. This may 
be true, but it is a refinement upon the use of terms, which it does not 
seem important to discuss ; and I am content to leave the text as it stands. 
See Ante, § 212 ; May v. Selby, 1 Younge & Coll. New R. 235. 

1 Munch V. Cockerell, 8 Sim. R. 219. This qualification of the text 
is inserted upon the sole authority of Munch v. Cockerell. Whether it 
can be. supported may admit of some question ; and it is not easily recon- 
cilable with the language of some other cases. See Ante, § 213, note, 
and May v. Selby, 1 Younge & Coll. New R. 235. 

8 Beasley v. Ken yon, 3 Beavan, R. 544. 



CH. IT.] PARTIES TO BILLS. 249 

well founded, will dispense with the necessity of their 
being made parties. Thus, for example, in cases where 
an executor would otherwise be a proper party, it is 
common enough to allege in the Bill, in order to pre- 
vent the necessity of making him a party, that he has 
accounted for all his receipts.^ So, where a Bill was 
brought by the legatee of a legatee against the trustees 
of stock, grounded upon a bequest of the reversiona- 
ry interest in the stock to the original legatee after the 
death of the testator's wife, who had since died, and 
it was averred in the Bill, that the executors of the 
successive testators had all assented to the legacy ; it 
was held unnecessary to make any of the executors 
parties to the Bill ; for no decree could be had against 
them ; and the legacy must be deemed to have abso- 
lutely vested in the original legatees, and so in the 
other legatees successively.' 

^ 215. In the next place (as we have already 
seen), persons, who have demands upon trust pro|)er- 
ty prior to the creation of the trust, may enforce those 
demands against the trustees, without making the per- 
sons, interested in the trust, parties to the suit, if the 
absolute dis]X)sition of the property is vested in the 
trustees.* But if the trustees have no such absolute 
power of disposition (as if they are trustees merely 
lo convey to uses), then, and in that case, the |)er- 
8ons entitled to the benefit of the trust must also be 
made parties/ 

^ 216. In the next place (as we have already 
seen),' where there is a general trust for creditors. 



I Per Lord Cottcnhim, in Mare v. Malachy, 1 Mylne &, Craif^ , fi 

* SmiUi V. Brooksbank, 7 SimoiiB, R. 18. 
> Ante, 4 140. 

« Mitf. Eq. PI. bT Jeremy, 175, 176; Ante, ^ 149. 

* Ante, 1 149, 157. 

EQ. PL. 32 



i § . 



250 EQUITY PLEADINGS. [CH. IV, 

or others, whose demands are not distinctly specified 
in the creation of the trust, as their number, as well as 
the difficulty of ascertaining, who may answer a gen- 
eral description, might greatly embarrass the due ex- 
ecution of the trust. Courts of Equity will dispense 
with all the creditors, and others interested in the 
trust, being made direct parties.^ And it will be suf- 
ficient, if the Bill is brought to enforce the due execu- 
tion of the trust, that it should be stated to be brought 
on behalf of all interested.^ And if the Bill is brought 
adversely to the trust by a third person, it will be suf- 
ficient to make the trustees parties.' 

^ 217. It is upon this same ground of the numer- 
ousness of parties, as well as upon the ground of a 
virtual representation, and of the general nature of the 
trust, that it has been laid down as a general rule, that 
trustees of real estate for the payment of debts or 
legacies may ordinarily sustain a suit, either as plain- 
tiffs or as defendants, without bringing before the 
Court the creditors, or legatees, for whom they are 
trustees, which in many cases would be almost impos- 
sible.^ But this rule, as we have seen, seems to ad- 
mit, if it does not absolutely require, some qualifica- 
tion/ Hence, too, although the general rule is, that 
in the case of an appointment of a personal fund by 

1 Ante, ^ 103, 14U, 150, 157. 

9 Douglas r. Horefall, 2 Sim. & Stu. 184 ; Mitf. Eq. PI. by Jeremy, 
174, 176 ; Ante, ^ 102, 103. 

3 Anon. 1 Vera. 261. But quaere, if the trust be for creditors, who shall 
execute the assignment within a limited time, and those who do so exe- 
cute it are not very numerous, whether all of such creditors should not be 
made parties by name. Harrison v Stewardson, 2 Hare, R. 530, 532 ; 
Ante, ^ 102, 103, 149, 150, 206 ; Post, § 217. 

4 Ante, § 102, 150 ; Mitf. £q. PI. by Jeremy, 174. But see Harrison 
V. Stewardson, 2 Hare, R. 530, 532, cited Ante, ^ 140, 141, 150. 

5 Ante, ^94, 140, 141, 150, 207, 208; Weatherby r. St. Giorgio, 
2 Hare, R. 624, 629 ; Harrison v, Stewardson, 2 Hare, R. 530, 532; 



CH. IV.] PARTIES TO BILLS. 251 

the will of a feme covert^ all the appointees should be 
made direct parties to the Bill for a distribution of the 
fund by the executor, who is a constructive trustee ; 
yet the rule yields, where the ap{X)intees are very nu- 
merous ; and, in such a case, on account of the incon- 
venience, a Bill may l)e maintained by some on liehalf 
of all.' 

§ 218. Eighthly, and lastly, on matters of Account.' 
In many of the cases referred to under the preceding 
head, persons were required to be parties simply upon 
the ground, that they were proper parties to an account 
to be taken in the cause. In many of them, the doc- 



Hawkioi v. Hawkins, 1 Hare, R. 543, 546. In this last case, Mr. Vice- 
Chancellor Wigram said ; **The general rule of this Court is, that all 
peiaoDS interested in the subject of a suit must be parties, except where 
their numbers are so great as to render the application of the rule highly 
inronrenient or impracticable. And therefore, where the interests of a 
diM, as of the children or next of kin of a particular person, are concerned, 
the whole of those, who constitute the class, mu8t be parties, and the Court 
must be satisfied, by evidence of some kind, that they arc so. It is ailuiit- 
ted, that, in the case of the di.<ttribution of a fund, all the parties entitled 
to it most be present ; and that, at least as a general rule, the miNle of 
proYiog that they are present, is by inquiry before the Master. Whether 
the same mode of proof is invariably required when the quest iiui is be- 
tween the class, and one claiming; adversely to the class, I am not called 
apon now to decide, it is sufficient, for the pres«.'nt case, to say, that wtme 
proof of the fact, that the parties interested are before the Court, is neces- 
sary. In respect of the practical neressity of the rule, I cainuit hvo. that 
there is any diflerence lyetwceii a cai^e calling for a declaration of right to 
a fund,—- wliirh is not maili', unlcHs it in to have some etrvet, — or the dis- 
tribution of a fund, whi^h is sought to lir made adversely to a class, — and 
the case of membrrs of that class H«!ekin;r distribution among.<it themselves. 
A reason that the Court rcquin's more than the mere statement of the 
parties themselves, that all the memliers of thr class are before the Court, 
is, that, if that statrmrnt were deemed suflicirnt, a fraudulent agreement 
might be made Ih 'tween some parties to thu exclusion or injury of 
oihen.** See also Baker v. HarwoiMl. I Hare, R. 3*27. 

i Manning ». Thcsiger, I Sim. 6i Stu. KIO; Court n. Jeffery, 1 Sim. 
Sl Stu. 105 ; Ante, ^ 201 and note. 

• See Calrerton Parties, ch. 3,5 1, p. U»- I3tf ; Edwards on Parties. 
178, 170. 



252 EQUITY PLEADINGS. [CH. IV. 

trine, however, turned upon various and more compli- 
cated considerations. It seems, therefore, fit to say a 
very few words in this place as to parties in matters of 
account in general. An account may be sought by 
several persons against one, or by one against several. 
In each of these cases, all the persons on each side, 
having an interest in the account, are necessary par- 
ties, and should accordingly be made such, either as 
plaintiffs, or as defendants. Thus, for example, (as we 
have seen,) if an account is sought by or against part- 
ners, all the partners are proper and necessary par- 
ties to the suit.^ So, if two executors are bound to 
render an account, they should both be made parties.* 

^219. Upon similar grounds, wherever different per- 
sons are interested in an account, although not in the 
same right, they should all be joined ; as, for instance, 
heirs and personal representatives, residuary legatees 
and distributees, mortgagors and mortgagees, and their 
assignees;^ persons receiving and holding assets in 
succession in virtue of their representative character ; * 
and persons having distinct interests in the same secu- 
rity, either jointly, or in succession.* 

^ 220. Sometimes, where there is a defect of par- 
ties, which is made apparent at the hearing, and is not 
previously objected to, the Court will proceed to a final 
decree, if the plaintiff will undertake to give effect in 
the cause to the utmost rights, which the absent parties 



1 Moffat V. Farquharaon, 2 Bro. Ch. R. 338 ; Evans v. Stokes, 1 Keen, 
R. 24 ; Stafford v. City of London, 2 Eq. Abridg. 166 ; Ante, ^ 167. 

8 Cowslad V. Cely, Prec. Ch. 83 ; Scurry v. Morse, 9 Mod. R. 89. 

3 Ante, ^ 172, 173, 181, 185, 186, 196, 201. 

^ Ante, § 159-176; Hindmarsh v. Southgate, 3 Russ. R. 328 ; Hol- 
land V, Prior, 1 Mylne & K. 237 ; Anderson v. Gaunter, 2 Mylne & K. 
763. 

5 Palk r. Clinton, 12 Ves. 48 ; Hobart v. Abbot, 2 P. Will. 643 ; Nor- 
rish «. Manhall, 5 Madd. R. 47ft. 



CH. IV.] PARTIES TO BILLS. 253 

could have claimed, if they had been before the Court, 
and those rights are such, as do not affect the rights of 
the defendants, who are before the Court.^ 

^ 221. We may here also advert to a point of con- 
siderable practical im{X)rtance, (of which incidentally 
notice has been already taken,) and that is, that in 
many cases it furnishes no ground of objection, that 
persons are joined as parties in the suit, who, if they 
had been omitted, could not have been deemed neces- 
sary parties ; for, in a variety of cases, it is in the 
option of the plaintiff to join them, or not, as defend- 
ants.' Thus, for example, if a trustee has fraudulent- 
ly or improperly parted with the trust properly, the 
cestui que trust may proceed against the trustee alone, 
to compel satisfaction for the breach of trust, or he 
may at his election join the assignee also, if he was a 
party to the fraud, or if he seeks redress against liiin.^ 
Soi if a pawnee, or other person, lawfully in possession 
of jewels, should deliver them over to a third person 
for custody, he may have a Bill for a redelivery and 
account of them without making the pawner or his 
representatives a |Kirty/ So, a jierson, who is a mere 
nominal or formal party, may sometimes be dis[)ensed 



I Harrey v. Cooke, 1 Russ. R. 34, 5t, 55 ; Post, $ 2.1G. 

* Ante, 4 153, 15A. 211 ; Povt, § *22», 512. The SOth Orilcr of tho 
Eoglbh Orders in Chancery of iSll.provifJcR, ** That whiTu no account, 
payment, conveyance, or oih«:r rehef is sought a^raioHt a party, but the 
plaialiff ahalt re^uiri! siicli party to appear to and answer the Dill, the 
eoala oecaaioned by the plaintitf havini; mini red such party mi to appear 
and anawer the Hill, and the costs of all proceedings con8ri)ucntial thereon, 
ahall be paid by the plaintiff, unless the (/ourt shall otherwise direct.*' 
Tb« aame Rule has been adupted by the Supreme Court of the I'liited 
Stalaa. S«e 54th Rule of the F^piity Rules, January Term, 1h|>j. 

> Bailey v. Inelee,2 Paifre, R. 27t(, 'J7<» ; West v. Randall, 2 Ma>on, 
R. 197, lOH ; Ante, $ 137. 

4 SaviJla v. Tancred, 1 Ves. 101 ; Calvert on Parties, ch. I. -^ 1, p. 7 ; 
Ante, 4 913. 



254 EQUITY PLEADINGS. [CH. IV. 

with, although, if he were joined in the suit, there 
would be no ground for any exception on his part* 

^ 222. Hitherto we have spoken of cases, where 
private persons only are interested in the subject-mat- 
ter of the suit. But the same principle is applicable to 
cases where the Government itself is a party in interest.* 
In all such cases, it is essential, that the Attorney- 
General, who is the proper public officer of the Gov- 
ernment, should be made a party, either as plaintiff, or 
as defendant, to protect and assert the interests of the* 
public.^ Hence it is, that in cases of public charities 
the Court always requires the Attorney-General to be 
made a party to the suit ; because the Crown or Gov- 
ernment, as parens patruSj superintends the adminis- 
tration of all charities, and must, in cases of this sort, 
act by its proper officer, who is the Attorney-General.* 

^ 223. We have thus reviewed some of the most 
important classes of cases, which serve to illustrate the 
general rule, as to the necessary parties to a Bill in 
Equity, and also to illustrate the exceptions to that 
rule. In general, it may be said, that in most of 
these classes of cases the doctrine, which is applied, is 
in a high degree reasonable and convenient, and pro- 
motive of the ends of justice. In some of them, the 
doctrine can scarcely be treated otherwise, than as 
founded in mere artificial or technical reasoning ; 

1 Butler V. Pendergrass, 16 Vin. Abridg. Party, 248; S. C. 2 Bro. 
Pari. Caa. 170 ; Fletcher r. Ashburner, 1 Bro. Ch. R. 497, 498. See 
also Saville v. Tancred, 1 Yes. 101 ; Calvert on Parties, ch. 1, § I, p. 
7,8. 

9 See Calvert on Parties, ch. 3, §26, p. 301-308; Edwards on Par- 
ties, 60-62. 

3 Attorney-General v. Brown, 1 Swanst. 265, 290, 291, 294; Cooper, 
Eq. PI. 17, 22; Mitf. Eq. PL by Jeremy, 21, 22 and note, 30, 102, 
169, 172. 

* Wellbeloved ». Jones, 1 Sim. & Stu, 40 ; Mitf. Eq. PI. by Jeremy, 
17, 22, 30, 102, 169. 



CH. IV.] PARTIES TO BILLS. 255 

sometimes, as stopping short of the proposed objects, 
for which it is adopted ; sometimes, as iutroductive of 
anomalies not easily referable to any common princi- 
ple ; and sometimes, as subversive, eitlier totally or 
partially, of the ends of justice, by obstructing, or ex- 
tinguishing all chances of any remedy in Equity. 
Perhaps, however, it may be found, upon a close sur- 
vey of the whole matter, that a difTcrent doctrine in 
these latter instances would work out inconveniences 
and mischiefs in an opposite direction, which would 
be equally liable to objection, and equally to be 
lamented. So that, after all, we may rather impute 
these apparent blemishes in the system to the general 
inability of all human contrivances to attain entire 
justice, than to any positive omission to provide a safe, 
uniform, and effective remedy in all practicable cases. 
^ 224. In concluding this part of our subject, we 
may here quote the language of Lord Redcsdale, as 
furnishing at once an admonition and a motive to fur- 
ther diligence, and to more copious inquiries into the 
true grounds of necessary parties, when new cases 
arise, which may require new applications of princi- 
ples. ** In some cases, however," (says that eminent 
judge,) ** it may still remain a question of considera- 
ble difficulty, who are necessary parties to a suit. It 
may, indeed, Ix^ doubtful, until the decision of the 
cause, what interests may be affected by that decision ; 
and sometimes {Kirties must Ik; brought before the 
Court to litigate a question, who had, according to the 
decision, no interest in tlu; sulyect ; and as to whom, 
therefore, whether phrintifls or defendants, the Bill may 
be finally dismiss(*d, although the Court may make 
a decree on the sul)jert, as lM*tween other jiarties, 
which will l)e conclusive on the {x^rsons, as to whom 
the Bill may be so dismissed, but which the Court 



256 EQUITY PLEADINGS. [CH« IV. 

would not pronounce in their absence, if amenable to 
its jurisdiction. Sometimes, too, a plaintiff, by waiving 
a particular claim, may avoid the necessity of making 
parties, who might be affected by it, though that claim 
might be an evident consequence of the rights asserted 
by the Bill against other parties. This, however, 
cannot be done to the prejudice of others."* 

^ 226. Let us now proceed to the consideration of 
the correlative inquiry, who ought not to be made, or 
who need not be made, parties to a Bill in Equity.^ 
And, here, the point most usually arises in relation to 
parties defendants, although it is by no means confined 
to them.* 

^ 226. In the first place, (as we have already seen,) 
the rule, as to necessary parties, does not extend to all 
persons, who may be consequentially interested, or 
a fleeted by the suit; as, for example, in the case of a 
Bill by a creditor for payment of his debt out of the 
assets of his deceased debtor, whether it is a suit 
brought for himself alone, or on behalf of all others/ 
In the former case, all the other creditors may be con- 
sequentially affected by the decree ; in the latter, all 
the legatees and distributees. 

^ 226, a. Upon the like ground, where a Bill is 
brought for a discovery merely, in aid of a defence in 
an action at law, no other person except the actual 
plaintiff at law, should be made a party to the Bill of 
discovery, although others may be beneficially interested 
in the subject-matter of the action at law. Thus, if an 
action at law is brought by an agent upon a policy of 
insurance, and the underwriters file a Bill of discovery 

1 Mitf. Eq. PI. by Jeremy, 179, 180 ; Williams v. Williams, 9 Mod. 
R. 299. See also Post, § 336, 237, 279, 509, 541, 544. 
a See Calvert on Parties, ch. 1, § 3, p. 65-73. 
3 Post, § 229, 232, 236, 237, 279, 509, 541, 544. 
* Mitf. Eq. PI. by Jeremy, 170, 171, 175 ; Ante, § 140. 



CH. IV.] PARTIES TO BILLS. 257 

in aid of their defence to the suit at law, the Bill 
should be brought against the agent alone; and his 
principal, not being a party to the suit at law, ought 
not to be joined in Equity, although he has the real in- 
terest in the suit.^ The same rule will apply to an 
agent bringing a Bill for a discovery in aid of his own 
action at law ; for there the principal ought not to be 
joined as plaintiff, although he has a substantial in- 
terest-* 

^ 226, b. So, in the case of a common Bill for the 
specific performance of a contract of sale of real estate, 
the only proper parties in general are the parties to 
the contract itself.' S|)ecial cases may indeed exist, 
in which the rule may be otherwise ; but they stand 
upon their own {leculiar grounds. 

^ 227. In the next place, a person is not properly a 
party to a suit, between whom and the plaintiff there 
is no proper privity or common interest, but his lia- 
bility, if any, is to another jx^rson. This may l)e illus- 
trated by the common case of a Bill brought by a 
creditor against an executor or administrator for pay- 
ment of his d(>bt out of the assets.^ To such a Bill a 
debtor to the estate is not ordinarily a pro|)er party ; 
because his liability is solely to the executor or admin- 
istrator. But if a special case is made out, such as 



I Irring 9. Thompson. Sim. K. 17; Fcnton ». HughcB, 7 Vca. 287. 
Lord Abinger docidfd directly the other way, in (flyii v. Suari's, 1 Yi)iin);o 
Sl Coll. 6M. »ce also Taylor r. I^rijjworth, II Peters, H. 172; Post, 
^569. 

• Gljm w. Soarcs, 3 Mylnc & Keen, 450 ; Irving v. Thompson, » Sim. 
R. 17 ; Fenton r. Hughes, 7 Yes. 2H7. The case might be difft»rent, if 
the Bill were not only for discovrrv, but also for n*lief. Irving r. Thomp- 
•00, 9 Sim. R. 17. aO; Taylor v. Ix»ngwonh, 14 Peters, R. 172; Post, 
{569. 

• Wood f. White, 4 Mylnc & Craig, R. 460, 483. 

4 Unerwn •. Mair, 2 Ves. jr. U5 ; Gedgc v. Traill, 1 Rus. & Mylne, 
981 ; 9 Story oo Equity Juriap. $ 836. 

£Q. PL. 33 



268 EQUITY PLEADINGS. [CH. IV. 

collusion between him and the executor or administra- 
tor, or insolvency of such personal representative, then, 
and in that case, the debtor, may be made a party, as 
a means of uprooting the fraud, or of securing the 
property.* 

§ 228. In the next place, the plaintiff may, (as we 
have already seen,) in some cases, by the very struc- 
ture of his Bill, and the prayer of relief, obviate the 
necessity of making a person, otherwise interested, a 
party .^ Thus, where the plaintiff alone is concerned 
in interest, as to a demand upon a person not made 
a party, he may, by a waiver of that claim, dispense 
with his being a party.* So, if, at the hearing, the 
plaintiff waives any relief against a person, not made a 
party.* 

^ 229. In the next place, the non-joinder of a mere 
nominal or formal party will often be dispensed with, 
if entire justice can be done without him ; or if he can- 
not properly be made a party to the suit.* Indeed, 
the joinder or non-jpinder of mere nominal or formal 
parties will not ordinarily be allowed by the Court, as 
a valid objection to proceedings under the Bill.^ 

^ 230. In the next place, no person need be made 
a party to a Bill, who claims under a title paramount 
to that brought forward, and to be enforced in the 
suit ; or who claims under a prior title or incumbrance, 
not affected by the interests or relief sought by the 



A Ante, ^ 127, 129, 139, 167, 178, 214. 
» See Ante, § 127, 139, 213, 214. 

3 Mitf. Eq. PL by Jeremy, 179, 180 ; Williams v. WUliams, 9 Mod. 
R. 299 ; Ante, § 127-130, 214. 

4 Pawlet V. Bishop of London, 2 Atk. 296 ; Northey r. Northey, 2 
Atk. 77. 

5 Butler V. Pendergrass, 2 Bro. Pari. Cas. 170 ; S. C. 4 Bro. Pari. Cas. 
by Tomlins, 174 ; 16 Viner Abridg. 248, pi. 5 ; Ante, § 221 ; Post, § 542. 

• Wormley v, Wormley, 8 Wheat. 461 } Ante, ^ 221 ; Post, $ 542. 



CH. IT.] PARTIES TO BILLS. 259 

Bill.' Thus, for example, on a Bill to carry into efTect 
the trusts of a will, a person, who claims by a title 
paramount to that will, ought not to be made a party, 
in order to bring into contestation his rights under 
such paramount title.' So, where a Bill seeks merely 
the application of the surplus of a trust fund, after 
discharging prior incumbrances, the prior incumbran- 
cers are not necessary parties.' 

^231. In the next place, no person should be made 
a party, who has no interest in the suit, and against 
whom, if brought to a hearing, no decree can be had.^ 
Upon this ground it is, that a person, who is a mere 
agent in the transaction, ought not to be made a piirty 
to a Bill ; as, for example, an auctioneer, who has sold 
an estate, the sale t)eing the matter in controversy ; ' 
or a steward or receiver of the rents and profits, where 
the controversy is l)etwecn the vendor and the vcmdee 
to a Bill for a s|M3ci(ic performance ;" or an attorney or 
solicitor, who has negotiated an annuity, to a Bill to 
set it aside, on account of a defective memorial ; ^ or 
an arbitrator to a Bill, to enforce, or to set aside an 
award.' 



> Ante, 4 148, 149, 1»3. 

• Devooahcr v. Newcnham, *-> Hrh. & Ufr. 2«7-21'2; Antf, ^ 101 ; 
Pelham r. Grpjrory, 1 FA-n, K. 5-JO: S. C. « Hro. CU. K. riTfi; 'A Bm. 
P«ri. Cm. hy Tumltns, •2I>1 ; Kajrle Firp Irisiirann* ('omimiiy v. licnl, B 
Paige, 635 ; Uni;** v. hnivn, 5 liiiKli. U. l!K>; Antis ^ 1 IN, il«», ir>l,l03. 

> Milf. V/\. V\. hy JiTtMiiy, 175; Anir. {^ I SH, 1 1!». 

4 Milf. V4\. PI. by Jen-niy, HiO; 2 Vj(\. Ahrifl^r. 7H, i»l. 12; Sriiiih v. 
Snow, 3 Madd. K. 10 ; WoHt v. Randall. 2 M:ih<iii, K. lf»2. 11)7 ; 'Irtcu- 
thkk V. AuHtin. 4 Maw»n, K. 42; Prtch v. Dalton, H Price. R. 12; 1 
Hania. fh. Pr. by Nci*land, :iH (INIH) ; U Texior v. Maniuis of 
AMpach. 15 Vm. IB4; f\Kip«!r, F^i- PI. 41,42; 2 Madd. Ch. Pr. 140, 
147; H Story on tlqutty Jurinp. \ 14*.i<J; P<Mt, ^ 570. 

• Cooper, Eq. PI. 41, 42; Pimi, ^ 570. 

• Cooper, Va\. PI. 42; McNainara r. WilliamB, Ves. 143. 
7 Cooper. Ki\. PI. 42; 2 Madd. Ch. Pr. 110, 147. 

• Ifitf. Bq. PI. by Jeremy, iOO, 161 ; Cooptr, V4\. PI. 178; Steward r. 
EaM India Company, 8 Vern. 380 ; 9 Eq. Abridg. 78. 



260 EQUITY PLEADINGS. [CH. IV. 

^ 232. In cases, too, where the objection of a want 
of interest applies, it is, or may be equally as fatal, 
when applicable to one of several plaintiffs, as it is 
when applicable to one of several defendants.^ In- 
deed, in the former case, the objection is, or may be 
fatal to the whole suit; whereas, in the latter case, it 
is fatal (if properly taken and in due time) to the suit 
only against the defendant improperly joined.^ But in 
cases of this sort, if there is any charge of fraud con- 
nected with the transaction, in which the agent, or 
steward, or attorney, or solicitor, or arbitrator, partici- 
pated, and it is so charged in the Bill ; there, he may 
properly be made a party ; for even if no other decree 
would be warranted by the circumstances of the case 
against him, he might be decreed to pay the costs of 
the suit, if his principal should happen to be, or should 
become insolvent.* 

^ 233. Another exception has been sometimes made, 
upon a ground not entirely satisfactory, and which 



1 Ante, ^ 224 ; Post, § 236, 237, 509, 541, 544, 569. 

3 Makepeace v. Haythorne, 4 Russ. R. 244 ; King of Spain v. Machado, 
4 Russ. R. 225, 241 ; Hunter v. Richardson, 6 Madd. R. 89 ; Mitf. Eq. PI. 
by Jeremy, 160, 161; Ante, §224, 229: Post, § 236, 237, 641-544, 
669. 

3 Cooper, Eq. PI. 42; Mitf. Eq. PI. by Jeremy, 160, 161, 189; 3 
Story on Equity Jurisp. § 1500; Bowles v. Stewart, 1 Sch. and Lefr. 
227 ; Le Texier v. Marquis of Anspach, 15 Ves. 164 ; Fenton v. Hughes, 
14 Ves. 287-289; Stewart v. East India Company, 2 Vern. 380 and 
note, and 14 Ves. 253 ; Lingood v. Eade, 2 Atk. 501 ; Lingood w. Crouch- 
er, 2 Atk. 395 ; Church v. Lequesne, 2 Ves. 315 ; Post, ^ 570. In such 
a case, the Bill itself should pray costs against the agent, &c. ; for other- 
wise a demurrer would lie. Le Texier v. Marquis of Anspach, 16 Ves. 164. 
The same principle applies to the case of a debtor to a testator's estate, 
who cannot ordinarily be joined in a creditor's suit against the executor 
for payment of his own debt ; but he may be, if collusion is charged be- 
tween him and the executor. 1 Mont. Eq. PI. 45, 46, note (o) ; 2 Mont. 
Eq. PI. 141 ; Mitf. Eq. PI. by Jeremy, 158, 169; ElmsUe v. Macaulay, 
3 Bro. Ch. R. 624. 



CH. IV.] PARTIES TO BILLS. 261 

may now be considered as of very doubtful authority. 
It is the case of a bankrupt, in which it is admitted, 
that although he ought not generally to be made a party 
to a Bill against his assignees touching his estate ; yet, 
if in such a Bill any discovery of his acts, before he 
became a bankrupt, is sought, he may properly be 
joined and comp(.'lled to make the discovery.^ And 
the same proposition has been put in a more general 
form ; that where a person, having had an interest in 
the subject-matter, has assigned that interest, he may 
yet be compelled to answer with respect to his own 
acts before the assignment.^ 

fj 234. For the same reason, a mere witness ought 
not to be made a party to a Bill, although the plaintilf 
might deem his answer more satisfactory than his ex- 
amination ; for he has no interest in the cause, and 
no decree can be had against him ; nor would his 
answer be evidence against his co-defendant. And he 

I Milf. Eq. PI. by Jeremy, 101. 

■ Milf. Eq. PI. by Jrremy, 161. The whole d<»clrinp has boon shaken, 
if not OTerturned in Whitworth v. Davis, 1 Yes. & Beam. 518-550, 
and Griffin v. Archer, 3 Anst. ITH. Liird Rcdesdale's own mo<lc of stat- 
ing the propoution in the paAnagr cited in the text shows, that ho deonicd 
it doubtfal. He has added ; ** It is difficult to draw a precise line between 
the eaten, in which a person, having no interest, may be called upon to 
anawer for his own acts, and those, in which he may demur, because ho 
haa no intereai in the question. Thus, whore a creditor, who had obtained 
esaevlion against the oflerts of his debtor, filed a Hill against the debtor, 
againat whom a commission of bankruptcy had issued, and the persons 
claiming aa assignees under the commishi<in, charr;ing, that the cominis- 
aion wat a contrivance to defeat the plaintiff's execution, and that the 
debtor baring by permiHsiim of the plaintiff possessed part of tli«> ^chhIs 
taken in execution for the purpose of sale, and instead of paying the pro- 
duce to the plaintiff had paid it to his assignees, a demurrer by the alleged 
bankrupt, because he had no interest, and might be examined as a wit- 
overruled, and the decision affirmed on re hear in (f A differ- 
also been taken, where a {lerson concerned in a tnnsactitm, 
impeacbed on the (rniund of fraud, has lM*en maile party to a Hill for dis- 
eovery merely ; or aa having the custixly of an instrument for the mutual 
beaeftt oTothera/* Mitf. £q. PI. by Jeremy, 161, 102. 



262 EQUITY PLEADINGS. [CH. IV. 

ought not to be harassed by the trouble or expense of 
a litigation, in respect to which he has nothing to gain 
or to lose.* 

^ 236. There are some exceptibns, however, to this 
general doctrine, which have been introduced upon 
peculiar reasons, and, whether satisfactory or not, 
which are now well established. Thus, for example, 
the oflScers of a corporation, although they may be 
mere witnesses, may be joined in the defence in a suit 
against the corporation. The reason assigned for this 
distinction between the cases of individuals and the 
cases of corporations is, that the former may be re- 
quired to answer upon their personal and corporal 
oaths; whereas a corporation cannot be sworn, and 
therefore must put in its answer under its common 
seal only ; and however false its answer may be, the 
corporation can never be convicted of perjury. Under 
such circumstances, it has been thought allowable to 
compel the officers of the corporation to answer to the 
material facts upon their own personal oaths ; and thus 
to enable the plaintiff better to frame his Bill, and 
better to draw and pen his interrogatories towards 
obtaining a fuller discovery.^ And in truth it must be 
admitted, that the officers are generally the only per- 



i Cooper, Eq. PI. 41,42; Mitf. Eq. PI. by Jeremy, 188; Wych v. 
Meal, 3 P. Will. 310 and Mr. Cox's note (1) ; Newman v. Godfrey, 
2 Bro. Ch. R. 332; Plummer v. May, 1 Yes. 426 ; Fenlon v, Hughes, 
7 Ves. 287-290; Dummer v. Chippenham, 14 Ves. 252; Whilworlh v. 
Davis, 1 Ves. & B. 550 ; Griffin v. Archer, 2 Anst. R. 478 ; Lloyd v. 
Lander, 5 Madd. R. 282 ; 2 Story on Equity Jurisp. § 1499. 

8 Wych V. Meal, 3 P. Will. 310; Moodalay v. Morton, 1 Bro. Ch. R. 
469 ; Whitworth v. Davis, 1 Ves. & B. 550 ; Dummer v. Chippenhmin, 
14 Ves. 252-254; Cooper, Eq. PI. 42; Mitf. Eq. PI. by Jeremy, 160 
and note, 189 ; Le Texier o. Marquis of Anspach, 15 Ves. 164, 165 ; 
Gibbons v, Waterloo Bridge Company, 5 Price, R. 493 ; Bramley v. 
Westchester County Manuf. Company, 1 John. Ch. R. 366 ; 2 Story on 
Equity Jurisp. § 1500. 



CH. IT.] PARTIES TO BILLS. 263 

sons, who can give the information.^ For a like rea- 
son, the members of corporations may also be made 
parties to a Bill, either for discovery alone or for dis- 
covery and relief, although they have no other interest, 
than as cori)orators, in the subject-matter of the suit.^ 

^ 236. Having stated those general doctrines in re- 
lation to the joinder and omission of parties, it may be 
proper to add in this connection (although the matter 
will necessarily come in review hereafter), that, if the 
want of proper and necessary parties is apparent on 
the face of the Bill, the defect may be taken advantage 
of by demurrer.^ In many cases, and especially if 
the defect be vital to the character of the Bill, and 
to the relief asked, the objection may also be insisted 
upon at the hearing. And, if the Court shall proceed 
to a decree, the decree may be reversed for error on 
this account/ If the defect is not apparent on the 
Bill, it may be propounded by way of a plea, or it may 
be relied on in a general answer.^ If it is insisted on 
only at the hearing, the Court will often, if there are 



1 It secnu, however, that although it is nut an unusual rule, that the 
oificen of a corpfiration may he made parties ; yet that a 8i>erial ground, 
mch IS to peculiar information, should he laid. Thus, in Howe v. Hent, 
5 Bftdd. R. 19, where an officer of the Bunk of Kngland was made a 
party to a Bill of discovery, when certain stock in question in \\w cause 
was transferred, it was held on demurrer, that he was not properly j<iined, 
beeause be was a men* witness. 

' Glascott «. Copi>er Miners* Company, II Sim. R. 301. 

> Pom, i 54 1 -511. 

4 Cooper, Vjr\, 1*1. 33, inri ; Mitf. Ya\. PI. hy Jeremy, 1«0, and the cases 
there died; Pract. Vicfi. hy Wyait, aiW ; 1 Daniell, Ch. Praci. 3H4 - 
3H8; 9 DanielK Ch. Pract. 37, 38 ; Whiting r. Hank of I'nited States, 
13 Peters, R. It. The mere non -joinder of a proper party cannot avail 
the defeadanl in a Hill of review, unless it oi>eratcs to his prejudice; 
aad there is the mure reason for this ruh*. liecausc the absent pfn>on is 
not bouod by the dt>ereu ; hut may, in another suit, vindicate his ri^'hts. 
Whitinfr V. Bank of United Slates, 13 Peters. R. U ; Post, $ 2h3, 500, 
Ml, 544. 

^ Cooper, Eq. PI. *JbU ; Mitl. lOq. PI. by Jeremy, 980. 



264 EQUITY PLEADINGS. [CH. IV. 

merits, allow the cause to stand over, in order to make 
the new parties, or, if the Bill is dismissed, it should 
be without prejudice.^ 

^ 236, a. It is no answer to the objection of a want 
of proper parties, that the persons, who are not parties, 
might, if made so, object, that the Bill is multifarious. 
Many Bills may not be multifarious as to some persons, 
interested in the whole subject-matter, which would be 
so as to others, interested only in part of it. But that 
is no reason for the Court proceeding in the absence of 
any person, who ought to be present, as to any part of 
the case. It at most can only prove, that the plaintiffs 
have adopted a wrong course from the beginning; and 
that the error is irremediable under the ordinary per- 
mission to amend by making parlies.^ 

^ 237. If, on the other hand, the defect in the Bill 
should be a joinder of improper parties (as, for exam- 
ple, of persons, having no interest, or mere witnesses), 
in such a case, if the defect is apparent on the face of 
the Bill, it may be brought forward by a demurrer by 
the party improperly joined ; or he may, at the hear- 
ing, in some cases, rely on it, as a ground for a dis- 
missal of the Bill as against him.^ If the defect is not 

1 West V. Randall, 2 Mason, R. 181 ; Mechanics' Bank of Alexandria 
V. Selons, 1 Peters, R. 306 ; Hunt v. Wickliffe, 8 Peters, R. 215 ; Ante, 
§ 73; Post, ^ 541, 544. The 40th Order of the English Chancery Orders 
of 1841, has altered materially the old Rule. It provides, "That if a 
defendant shall, at the hearing of a cause, object that a suit is defective 
for want of parties, not having by plea or answer taken the objection, and 
therein specified by name or description the parties, to whom the objectioa 
applies, the Court (if it shall think fit) shall be at liberty to make a decree 
saving the rights of the absent parties.'* Ante, § 220. The same Rule 
has been adopted by the Supreme Court of the United States. See 53d 
Rule of the E^quity Rules of the Supreme Court of the United States, Jan- 
uary Term, 1842. 

8 Lumsden v. Fraaer, 1 Mylne & Craig, 589, 602 ; S. C. 7 Simons, 
R. 555 ; Attorney-General v, Poole, 4 Mylne & Craig, 17. 

3 Post, ^ 283, 509, 541, 544, 569. 



CH. IV.] PARTIES TO BILLS. 265 

apparent on the face of the Bill, the party, improperly 
joined, may rely on the objection by way of a plea, or 
insist upon it in his answer.^ It is not safe, however, 
in any case, to rely upon the mere non-joinder or mis- 
joinder of parties, as an objection at the hearing ; for 
if the Court can make a decree at the hearing, which 
will do entire justice to all the parties, and not preju- 
dice their rights, notwithstanding the non-joinder or 
mis-joinder, it will not then allow the objection to 
prevail.' The true course, therefore, is, to take it by 
way of demurrer, when it is apparent on the face of 
the Bill ; or, if not apparent, by plea, or by answer.' 
When the objection of want of proper parties exists, 
the Court will ordinarily allow the defect to be sup- 
plied by an amendment of the original Bill, or by a 
supplemental Bill, as the stage of the proceedings, at 
which the olgection is taken, may require.* 

^ 238. Where a demurrer, or a plea, is put in for 
the want of proper parties, if a demurrer, it must ap- 
pear, if a plea, it must be shown, who are the proper 
parties, not indeed by name, for that might be ini{)os- 



» Cooper, Vai, PI. 42 ; Milf. E*i. PI. by Jeremy, 160, 1«1 ; Post, 
i&41,U4. 

* Lunbcrt o. Ilutrhinson, 1 Rcavan, R. 277; Post, ^ 283, 541 ; Prin- 
ffle V. Crooks, 3 Yuiiiif;c & Cull. Odi. In this last case, a doubt was 
■u|fgesti*d, whftlior in any mtn: a niiH-jnimlfr of a defendant was a ^^ruund 
of demurrer. Pnst, ^ 511 and nntr. The vrry point as to a non-jomdrr 
of a defendant aronr in tin: can** nf Whiting r. Dank of Tnitcd Slates, 
13 Peters, R. 0- 14 ; and it waM tlnTr hrld, that unU'sn the non-joindt*r 
operated a prejudice to tin; ritfhts of the other defendants, it conhl not l>c 
taken adrantaite of at the hearing;, or upon a rehtfarinp on a Hill of rt'view. 
See also Russidl v. Clarke's Kx'rs, 7 (Vanch, Afl ; Klmendorf r. Taylor, 
10 Wheaton, R. 152; fVirneal v. Hankn, Id Wheaton, R. 1^1: Mallon 
V. Hiodc, 12 Wheaton, R. r*3; M«-chanic«t' Hank of Alexandria r. Setonn, 
1 Peters, R. 30G; Vattier r ilinde. 7 Peters, H. 252; HiNine's llrirs r. 
Chilea, 8 Peters, R. 532; Ante, f 232, 236 and note; Post, $ 511, 514. 

> Ibid. 

4 Pom, i Ml, 884. 

£Q. PL. 3-1 



266 EQUITY PLEADINGS. [CH. IT. 

aible ; but in such a manner as to point out to the 
plaintiff the objection to his Bill, and enable him to 
amend by adding the proper parties.^ Indeed, cases 
may occur of such a nature, as even to require the 
names to be stated, if the more general description is 
not sufficient to enable the plaintiff to ascertain with 
reasonable certainty the names of the absent parties.^ 
For example, if it should appear in the case of a Bill 
to enforce a rent charge for a charity, that other lands 
also were charged, it might be required in the plea to 
set forth, who are the present owners of these lands, 
and their precise locality, especially if the transaction 
were of great antiquity, and the original description 
were loose and indeterminate.^ 



1 Milf. Eq. PI. by Jeremy, 180, 181 ; Attorney-General v. Jackson, 
11 Vea. 369, 370 ; Post, § 543. See Attorney-General r. Poole, 4 Mylne 
& Craig, 17; 1 Daniel!, Ch. Pract. 384-388. 

8 Attorney-General v. Jackson, 11 Ves. 367-371. 

3 Ibid. ; Attorney-General v. Wyburgh, 1 P. Will. 609 ; Attorney- 
General V. Shelly, 1 Salk. R. 163. 



CU. v.] GENERAL FRAME OF BILLS. 267 



CHAPTER V. 

BILLS GENERAL FRAME OF. 

^ 239. Having gone through with these preliminary 
considerations as to parties, we shall now proceed to a 
more particular consideration of some of the general 
rules and principles applicable to the structure of 
Original Bills for relief. We have already had occa- 
sion to state the nature, and general character, and 
appropriate subdivisions, and parts of such Bills, 
which should be borne in mind in our subsequent 
inquiries. 

^ 240. In the first place, then, as to the certainty, 
which is required in the statements of Bills. With 
reference to certainty in pleadings at the Common Law, 
there are said to be three kinds, applicable to ditferent 
parts of the pleadings, founded, as it should seem, up- 
on one general maxim ; Cerln debet esse intentio^ et 
narratioj et certum fundamentum^ et certa res, qua 
dediicitur in judicium. The first kind is certainty to a 
common intent ; and that is suflicient in a bar, which 
is to defend the party, and to excuse him. The sec- 
ond is certainty to a certain intent in general, as in 
counts, replications, ;ind othrr plradiiigs of x\w |)laiii- 
tiflT, tliat is, to couvi<*t thr defrndant, as in indict- 
ments, &:c. The third is, ccrtaintv to a certain intent 
in every particular, as in esto|)prls, which arc* (Nlious in 
the law.* It has Intu said, that, in phsidin*;, there 
must be the samr strictness in Kquity as in law : ' as. 



> <\i. Litt. 303, fi. 

• Stury r. Lord Windsor, 8 Atk. 633. 



268 EQUITY PLEADINGS. [CH. V. 

for example, it has been adjudged, that if a plea sets 
up a bond fide purchase without notice, as a defence, 
it will not be sufficient to state in it, that the vendor 
being seised, or pretending to be seised, did con- 
vey, &c. ; but there should be a direct averment, that 
the vendor was actually seised.* But, however true 
this may be as to a plea in Equity, technically so called, 
it can hardly be affirmed to be true in the framing of 
Bills or answers, in respect to which more liberality 
prevails.* And it may perhaps be correctly affirmed, 
that certainty to a common intent is the most, that the 
rules of Equity ordinarily require in pleadings for any 
purpose.' 

^ 241. In the next place it may be affirmed, as an 
elementary rule of the most extensive influence, that 
the Bill should state the right, title, or claim of the 
plaintiff with accuracy and clearness ; and that it 
should, in like manner, state the injury, or grievance, 
of which he complains, and the relief, which he asks of 
the Court. In other words, there must be such cer- 
tainty in the averment of the title, upon which the 
Bill is founded, that the defendant may be distinctly 
informed of the nature of the case, which he is called 

1 Story V. Lord Windsor, 2 Atk. 632; Beam. Eq. PI. 21. 

a 3 Black. Comra. 446 ; 1 Mont. Eq. PI. 27, note (m) ; 2 Mont. Eq. PL 
92, 93, note (A. I.) ; Carew v. Johnston, 2 Sch. & Lefr. 305 ; Carlton r. 
Leigh ton, 3 Meriv. R. 671. 

3 Wigrara on Points in Discov. 77, 1st edit. ; Id. p. 123, 124, 2d edit. ; 
Cooper, Eq. PI. 181. It is sometimes laid down in the Reports, as well 
as in elementary works, that there should be the same certainty in a Bill 
in Equity, that there is in a declaration and other pleadings at the Com- 
mon Law. So Lord Hardwicke is reported to have said in Story v. Lord 
Windsor, 2 Atk. 632. See also Mitf. Eq. PI. by Jeremy, 284 ; 1 Mont. 
Eq. PI. 25. But the proposition is not strictly accurate ; and it has been 
well said by Mr. Wooddeson (3 Wooddeson Lect. 55, p. 370), that the 
matter of the Bill need not be set forth with that decisive and categorical 
certainty, which is requisite in pleadings at the Common Law. Thus, a 
part of the allegations of a Bill may be in the disjunctive. 



CH. v.] GENERAL FRAME OF BILLS. 269 

upon to meet.' The other material facts oun;i)t, also, to 
be plainly, yet succinctly alleged, and with all necessary 
and convenient certainty, as to the essential circum- 
stances of time, place, manner, and other incidents.^ 
If title deeds or other instruments are referred to, they 
should not be set out in hoic verba ; but the substance 
of such portions only of them as are necessary to a 
right understanding of the real matters of the Bill.^ 

^ 242. Uncertainty in a Bill, (as has been well ob- 
served,) may arise in various ways. (1.) The case 
intended to he made by the Bill may be vague and 
uncertain. (2.) The case intended to be made may 
be certain ; but the allegations of the Bill may be so 
vague and general, as to draw with them the conse- 
quences and mischiefs of uncertainty in pleadings.' 
(3.) Some of the material facts may be stated with 
sufficient certainty, and others again with so much 
indistinctness or incompleteness, as to their nature, 
extent, date, or other essential requisites (as, for exam- 
ple, in stating the title of the plaintiff), as to r<^nder 
inert or ineflicient those, with which tliev are con- 
nected, or \i\yo\\ which they dejMmd.' In each of these 



1 Houghton V. Rcynulds, 3 Ilarc, K. 3<'>ft. 

■ Miif. F^. IM. by Jeremy, 11 ; CtMipLT, V^. PI, r>; Wyatt, Pnicl. 
Reg. 57. 

' Wyau, Prart. Rep. 57, .W ; Uarton, Ta\. PI. 31, note (2) ; Heain. 
Ord. in V\\. 35, Of), 70, 100, 107; 11«>im1 f. Iiimann, I Juhn. < h. H. \M, 
In the Rut IiuJia ('om))any r. Jlt-iirhiiian. 1 Vi>s. jr. *JHO, the Ij«)rii rhari- 
rcllor adverted to the |fMK«riir»i8 ami prolixity of \\\v Hill, in which a t'ri'at 
many letters were M>t fi»rth ; and then added ; '* Alhiw tho dcniiirn-r.and 
let them (the plaintitfi)) fih* anothL-r liiil in three lineti tu Miit thr point, 
instead of stating all these lettern, tu Hhow, that the tranKirti«>ns, appoar- 
iag lair, in fact are licit fair. Where is the use of that' What is the 
allegmtMin?** 

* Wigrani on I)i»coT. 77, 7^, Ut edit.; Id. p. 123-1*25, *Jii edit.; 
Wormald v. lie Liiile, 3 Hcavan, R. |h ; Pluiiit>e v. Plunibe,-t Vonn^e & 
Coll. 345. 

^ Iloughloo V. Reynolds, 3 Hare, R. 304, 300. 



270 EQUITY PLEADINGS. [CH. V. 

cases, the defect may be fatal to the objects of the 
Bill ; or, if not fatal, it may greatly embarrass the 
party in the mode of redress, or in the extent of the 
discovery, or in the application of the evidence,^ 

^ 243. A few examples, derived from adjudged 
cases, may serve to illustrate these principles. Thus, 
where the East India Company brought a Bill against 
one of their servants, for a breach of his covenants, 
while in their employment, alleging, that he had en- 
tered into a combination with the Board of Trade, at 
Fort William, to defraud the company; that he had 
made certain false representations to the Company in 
his letters ; that he had made false chaises against 
them ; and that he had made large profits in his trans- 
actions with the natives ; and it prayed for an account 
of the profits, &c. ; upon a general demurrer, it was 
held, that the Bill was bad, from the vague and inde- 
terminate manner, in which the charges were stated. 
The natural mode of making the charges would have 
been, to have alleged, that the defendant exercised the 
trade under the orders of the Company, and that by 
color of this contract with the Company, he took the 
profits, as if they were his own ; whereas it was the 
trade of the Company.^ 

^ 244. So, where a Bill was brought to perpetuate 
a right of common and of way, the charge in the Bill 



1 Wigram on Discov. 84-86, Ist edit.; Id. p. 131, 132, 2d edit. 
Where the charge in the Bill is very general, it is often sufficient in the 
answer to make a general denial of its truth. Where it is special and 
specific in circumstances, the answer must make specific denials. See 
Wigram on Discov. 84-87, 1st edit. ; Id. 131 -136, 2d edit. Hence it 
is often very material, in cases of exceptions to an answer for itisofficien- 
cy, to look to the precise allegations of the Bill, and to the interrogatories 
ftramed thereon. Wigram on Discov. 196, Ist edit.; Id. 190-106, 2d 
edit. ; Hare on Discov. 36, 40. 

8 East India Company v. Henchman, 1 Ves. jr. 287, 288. 



CB. v.] GENERAL FRAME OF BILLS. 271 

was, that the tenants, owners, and occupiers of c(;rtain 
lands of a manor, in right thereof or otherwise, from 
time, whereof the memory of man is not to the contra- 
ry, had, and of right ought to have, common of pasture, 
&c. iu a certain waste, &.c. ; the Bill was held bad 
on demurrer; for the manner, in which the right of 
common was claimed, was not set forth with any cer- 
tainty. It was not set forth as common appendant, or 
as common appurtenant, hut as that, '< or otherwise," 
which was no specification at all, and left any sort of 
right open to proof. On that occasion the Court said : 
** Special pleading depends u|)on the good sense of 
the thing; and so does pleading here. And though 
pleadings in this Court run into a great deal of un- 
necessary verbiage, yet there must be something sub- 
stantial ; the pcirty must claim something.'^ ^ 

^ 244, a. So, where a Bill was filed by the assignees 
of a bankrupt, alleging that previous to the bankruptcy 
" certain dealings and transactions took place Ix'tween 
the bankrupt and the defendant," and that by virtue of 
*^ certain agreements for leases the bankrupt was j)os- 
sesscd of certain leasehold houses," which the Bill 
specified ; that in the course of such transactions, the 
defendant from time to time made '^ certain loans " 
to the iKinkrupt, and the bcmkrupt, '^ as was alleged 
by the defendant," made '^ some lease or assignment 
of the pro|)erty to the dr'fendant, but that the plaintilVs 
were unable to discover," iicc, &:r. ; it was held, that 
the Bill was demurrable for vagueness and un- 
certainty.^ 

^ 215. So, where a Bill sought a discovery and de- 
livery up of title deeds to the plainliif, and alleged, 



» Crvaset v. Milton, I Vts. jr. 1 1!> ; S. i\ 3 Hro. (J»i. K. lol. 
• Wormald r Dc LUle, 3 Deavaii, li. lb. 



272 EQUITY PLEADINGS. [CH. V. 

that at the time of the marriage of his father and 
mother, his mother was seised, and possessed, or enti- 
tled to divers freehold, copyhold, and leasehold estates, 
as one of the co-heiresses of her father, or under his 
marriage settlement, or his will, or codicil, or by some 
such or other means; and that upon the marriage of 
the plaintiff's father and mother, or before, or at some 
time after the said marriage, some settlement or settle- 
ments was or were executed, whereby all or some 
parts of the said estates were conveyed upon certain 
trusts and purposes, in such a manner, as that estates 
for life were given to his father and mother, or one 
of them, or at least an estate for life to his father, 
with a provision by way of jointure or otherwise for 
his mother, who died in the lifetime of his father, 
remainder to the first son of his father and mother, 
or to their first and other sons severally and succes- 
sively, or in some manner ; so that the plaintiff", upon 
the death of his father and mother, or the death of his 
father, became seised or entitled to all or most of the 
estates, &c., either in fee or absolutely ^ or a^s tenant 
for life, or in tail in possession, or in some other man- 
ner, as would appear by the deeds, &c., in the de- 
fendant's possession ; upon demurrer, the Bill was 
held bad for vagueness and uncertainty ; and that the 
defendants could not plead to it, but must discover all 
deeds relating to their estates.^ 

^ 245, a. So, where the plaintiff", claiming under 
a devise of H., averred in his Bill that H. " being or 
claiming to be seised or otherwise well entitled in fee 
simple to divers messuages"; it was held that this 
averment was too loose, and could scarcely be said to 
tender any material issue, and standing alone it would 



1 Ryves v. Ryves, 3 Ves. 343 ; Cooper, Eq. PI. 5, 6. 



CH. v.] GENERAL FRAME OF BILLS. 273 

be insufficient. But that the defect was aided by 
other allegations in the Bill, which distinctly and 
positively asserted the title of the plaintiff in the 
premises.' 

^ 246. So, where a Bill was founded upon the sup- 
posed due execution of a power, and insisted, in the 
alternative, that it was a good execution of the power 
at law, or if not, that it was a good execution of the 
power in Equity ; the Bill was held bad on demurrer ; 
for the plaintifls ought to state distinctly, whether their 
case is at law, or in Equity; for if it be good at law, 
there may be no remedy in Equity.' 

^ 247. So, where a Bill was brought to perpetuate 
the testimony of witnesses, touching the right to a way, 
and there was a demurrer, because the way claimed 
was not set forth with sufficient certainty ; the Court 
held, that the way should be set forth with the same 
certainty as at law, per, et trans.^ 

^ 248. So, where a Bill was filed by a cor{)oralion 
against the defendant, claiming certain duties under 
letters patent, in respect of which a discovery was 
prayed in aid of an action at law ; but the Bill did not 
state with certainty, by whom, or what description of 
persons in particular, the duties were payable, nor the 
particular nature of the duties themselves ; the Court 
allowed a demurrer to the Bill. For, although in the 
case of duties imposed by an act of Parliament, the 
Court is bound to take notice of them ; yet, in the 
case of a grant of the Crown, there should be some 
averment of the quantum of duties, and of the individ- 



1 Hooghtoo V. Reynolds, 2 Hare, R. 204, 266; Post, ( 258; Halls o. 
BUrgimve, 3 BeaTan, R. 28-1. 
* Kdwank v. Edwards, Jae. Kcp. 335. 
> Cell V. Hay ward, 1 Vcm. 312; Cooper, Ki\. PI. 312. 

EQ. PL. 35 



274 EQUITY PLEADINGS. [CH. V. 

uals, by whom they are payable ; for the Court can- 
not otherwise know the fact.^ 

^ 249. So, where, in a Bill by an heir at law, the 
plaintiff sought, among other things, to restrain the de- 
fendant from setting up any outstanding terms or other 
incambrances, to defeat the plaintiff at law ; but the 
Bill contained no averment of any outstanding terms ; 
it was held bad upon demurrer ; for the Court will not 
proceed upon a mere vague allegation, that the action 
may be defeated by setting up outstanding terms.* 

§ 249, a. So, if a Bill should in one part state an 
agreement, and in another charge that there was not 
an agreement but only an understanding, the plain- 
tiff thereby in effect admits, that there was no agree- 
ment, and therefore his Bill will be demurraUe for 
want of certainty.' 

§ 250. So, where a Bill was for an injunction to an 
action at law, brought for the recovery of the produce 
of certain foreign specie ; and the Bill suggested in 
general terms, that in a particular year the plaintiffs 
had frequently been employed as agents of the defend- 
ants, who were resident abroad, and that they had 
various dealings and transactions, and that mutual ac- 
counts subsisted between them, and in particular, that 
at a period, stated in the Bill, the defendants remitted 
the specie in question ; and the Bill prayed an account 
of the transactions and an injunction ; but there was 
no statement, that there were unsettled accounts, or 
that a balance was due to either party ; the Bill was 
held bad on demurrer, on account of the facts being 
too loose and vague to support it.* 

1 The Mayor of London v. Levy, 8 Ves. 398, 401 ; Cooper, Eq. PI. 5. 

» Jones V. Jones, 3 Meriv. R. 160, 172, 173. 

3 Morris v. Morgan, 10 Sim. R. 341. 

* Frietas v. Don Santos, 1 Y. & Jerv. 574. 



CH. v.] GENERAL FRAME OF BILLS. 275 

^ 251. U{)on similar grounds, where a Bill seeks a 
general account upon a charge of fraud, it is not sufli- 
cicnt to make such charge in general terms ; but it 
should point, and state particular acts of fraud.^ So, 
in a Bill to o|)en a settled account, it is not suilicient to 
allege generally, that it is erroneous ; but the specific 
errors should be pointed out.^ 

^ 252. But, although a general charge is insufllcient; 
yet it does not follow, that the plaintiff in his Bill is 
bound to set forth all the minute facts. On the con- 
trary, the general statement of a precise fact is often 
sufficient; and the circumstances, which go to confirm 
or establish it, need not be (although they often are) 
minutely charged; for they more profx^rly constitute 
matters of evidence, than matters of allegation.' 
Thus, for example, if a Bill is brought to set aside an 
award, bond, or deed, for fraud, imposition, partiality, 
or undue practice ; it is not necessary in the Bill to 
charge minutely every particular circumstance ; for 
that is matter of evidence, every part of which need 
not to be charged.^ 

§ 253. And general certainty is suflicient in |)lead- 
iflgs in Equity. Thus, for example, the statement of 
a feoffinent without livery of seisin, or of a bargain 
and sale without statement of the enrolment thereof, 
will be suflicient.^ So, in a Bill for a specific perform- 
ance of a contract, if it be alleg<:d to be in writing) it 



I Palmer 0. Mure, 3 Dirk. R. IH'K 

> JohnMin ». Curirw, 3 IJro. C'h. K. Uru* ; Taylor v. Haylin, J Hro. 
Ch. R. 310; Knight v. Uamru-ld, 1 Virii. InO. 

s Anie, i 3H. 

* Chicot •. LequpfiiM'. 2 Vrs. 31h; Clarke r. I'triain, *2 Atk. 337; 
Wifnm oo 1>iiioc»v. M, K>, Ut edit.; Id. 131, 12-2, 'M edit. ; < (niiht, 
Eq. PI. 7. Skt; Fauldtr v. Smart. 1 1 Ve». 3iW ; Pu»i, § •jr.3, -Jiij, n. 

> UaniKNi V. Ho^g. 2 Vi«. jr. 3*Jb; Cot>iitir, }a\. PI. \>ii. 



276 EQUITY PLEADINGS. [CH. V. 

IS not necessary to allege it to be signed by the party ; 
but it will be presumed to be so signed.* 

§ 264. And, although, (as we have seen) setting 
forth the plaintiff's title in alternatives may not be suf- 
ficient ; yet we are not from that to draw the general 
conclusion, that a Bill can never be brought with a 
double aspect. On the contrary, where the title to 
relief will be precisely the same in each case, the 
plaintiff may aver facts of a different nature, which 
will equally support his application. Thus, for exam- 
ple, if a plaintiff should seek to set aside a deed upon 
the ground of fraud and imposition and undue influ- 
ence ; the plaintiff, in such a case, may charge insanity 
in the party making the deed, and he may also charge 
great weakness and imbecility of mind.^ 

^ 255. These may suffice as illustrations of the 
general doctrine as to certainty, and as to looseness 
and vagueness in the statement of the case made by 
the Bill. In the next place, it is a general rule, that 
whatever is essential to the rights of the plaintiff, and 
is necessarily within his knowledge, ought to be al- 
leged positively and with precision.' Thus, for exam- 
ple, if a Bill is brought to charge a defendant as 
assignee of a lease, it wilt not be sufficient to state in 
the Bill, that the plaintiff has been informed by his 
steward, that the defendant is so assignee. But the 
fact must be positively averred ; for it is essential to 
the very claim set up by the Bill.'' On the other 
hand, the claims of the defendant may be stated in 



1 Dunn V. CalcraA, 1 Sim. & Stu. 543 ; Cozine v, Gr&ham, 3 Paige, 
R. 177. 

9 Bennet v. Wade, 3 Atk. 325 ; Cotton v, Ross, 3 Paige, R. 395 ; 
Lloyd V. Brewster, 4 Paige, R. 537 ; 3 Wooddes. Lect. 55, p. 371. 

3 Mitf. Eq. PI. by Jeremy, 41, 42 ; Cooper, Eq. PI. 6. 

4 Ibid. ; Lord Uxbridge v. StaTeland, 1 Yea. 56. 



CH. v.] GENERAL FRAME OF BILLS. 277 

general terms. And if a matter, essential to the de- 
termination of the claims of the plaintiff, is charged 
to rest in the knowledge of the defendant, or must of 
necessity be within his knowledge, and is consequently 
the subject of a part of the discovery sought by the 
Bill, a precise allegation thereof is not required.^ 
Thus, for example, if a Bill is brought for a partition, 
it will be sufficient certainty as to the defendant's title, 
if it should state, that the defendant is seised in fee of, 
or otherwise well entitled to, the other remaining un- 
divided parts of the premises. But such an allegation 
by the plaintiff of his own title would not 1x3 suffi- 
cient ; and he should set it forth positively and de- 
terminately.' 

§ 256. Still, however, even when the fact rests with- 
in the knowledge of the defendant, if it constitutes a 
material allegation in the Bill, and is the foundation 
of the suit, it must be clearly stated. As, for exam- 
ple, if a Bill seeks a discovery, whether the dcfinid- 
ants are assignees, &c., it will not be sufficient to al- 
lege, that the plaintiff has been informed, that the 
defendants are assignees ; but the fact must be i)osi- 
tively evened.' 

^ 257. And this leads us to remark, in the next 
place, that every fact essential to the plaintifl*'s title 



« Mitf. Eq. PI. by Jerrmy, 4-2; C'ooi»rr, F^. PI. fl. 

' Baring v. Nash, 1 V. & Hram. 551, 553. In the case of Furd v. 
Pearing, 1 Yea. jr. 7*J, it aiieina to have hc.cn thoufrht, that, in a Hill hy 
aa heir for a diacovcry and delivery of title deeds, it was not nrcfHhary fur 
the plaintiff to state every link of his podifrree, if there is a Hear averment 
and claim of his title as heir. ISiit qnirre, whether the Hill should not 
abow the precise manner, in which the party elaims as heir, l»efore he can 
call upon the defendant to diMrovcr and deliver him any title deeds, as 
theaa are facta peculiarly within his own means uf know led ji^e * How- 
ever, in De Corne v. llollinfrswurth, 1 (*<»x, K. 1*21, t*^*i, the Court ruled 
the nme point, aa it was ruled in 1 Ves. jr. 73. 

' Lord Uxbndge v. Suveland, 1 Ves. 56. 



278 EQUITY PLEADINGS. [CH. V. 

to maintain the Bill, and obtain the relief, must be 
stated in the Bill, otherwise the defect will be fatal. 
For no facts are properly in issue, unless charged in 
the Bill ; and of course no proofs can be generally 
offered of facts not in the Bill ; nor can relief be grant- 
ed for matters not charged, although they may be ap- 
parent from other parts of the pleadings and evidence ; 
for the Court pronounces its decree secundum allegata 
et probata.^ The reason of this is, that the defendant 
may be apprized by the Bill, what the suggestions 
and allegations are, against which he is to prepare his 
defence.^ Thus, if an obligee should bring a Bill to 
recover from an heir the amount of a bond, alleging 
real assets in his hands by descent ; the Bill will be 
demurrable, unless it also states positively and directly, 
that the defendant is heir, and that the heir is bound 
by the bond.^ So, if a Bill should be brought by a 
lessor against an assignee, touching a breach of cove- 
nant in a lease, and the covenant, as stated in the Bill, 
should appear to be collateral, and not running with the 
land, and therefore not binding on assigns ; it should 
be expressly stated in the Bill, not only, that the cove- 
nant did bind the lessee, but the assigns; otherwise 
the Bill would be fatally defective.* 

§ 257, a. So, if a judgment creditor should bring a 
Bill to enforce his security against the debtor's equita- 
ble interest in a freehold estate, he must aver in his 



1 Cooper, Eq. PI. 5, 7 ; Ante, ^ 28 ; Crocket ». Lee, 7 Wheat. R. 622, 
625; Gresley on Evid. 22, 23; Norbury v. Meade, 3 Bligh, R. 211 ; Hall 
V. Maltby, 6 Price, R. 240 ; Jackson v. Ashton, 11 Peters, R. 229 ; James 
V, McKernon, 6 John. R. 564; 3 Wooddes. Lect. 55, p. 371. 

3 Cooper, Eq. PL 5, 7 ; Ante, § 28 ; and cases before cited. 

3 Crosseing v. Honor, 1 Vern. R. 180 ; Mitf. Eq. PI. by Jeremy, 163 ; 
Cooper, Eq. PI. 179. 

* Mitf. Eq. PI. by Jeremy, 163 ; Lord Uxbridge v, Staveland, 1 Ves. 
66 ; Cooper, Eq. PI. 179. 



CH. ▼•] GENERAL FRAME OF BILLS. 279 

Bill, that he has previously sued out an elegit ; and if 
he does not, the Bill will be fatally defective, since an 
elegit is an indispensable prerequisite to the mainte- 
nance of the Bill.' So, if a judgment creditor should 
bring a Bill alleging, that the defendant, in order to 
deprive him of the benefit of his judgment, had got 
into his hands, goods of the debtor, under pretence of 
a debt due to himself, and should pray a discovery of 
the goods ; but should not aver in his Bill, that he had 
sued out execution on the judgment, the Bill would be 
fatally defective, liecause until he had so done, the goods 
were not bound by the judgment, and consequently 
the plaintiflf would have no title to the discovery.^ 

§ 258. For a like reason, where a Bill was brought 
by a holder of shares (of which some were original, 
and some derivative), in an unincorporated joint stock 
company against the directors, alleging a fraud by the 
latter, by which they had made a profit at the expense 
of the company, and praying an account, it was held 
demurrable ; Ixrause it only stated the |)laintifl^ to l)e 
a shareholder by purchase ; but it did not specifically 
state the mode, in which the plaintiflf Ix^came such a 
shareholder, and the manner of his holding his de- 
rivative shares, and that he had performed the con- 
ditions, on which alone, by the rules of the company, 
a transfer was allowed.^ 



I Neat« V. DiikfMif MnrllKiroiinh, 3 Myliio & Tlraig, 407, IKn 117; 
Mitf. Fiq. PI. by Jmiiiy, !••'«. 

• Mitf. K(\. IM. Iiy Jirniiy, l'*7» 1h8; Iil. I2r,; AfiRrll r. Dnprr, 1 
Vein. R. 3014; l'fi>t. § 31!). 

' Walhurn r. Inpilhy, I Myliir & K. fil. Srp Hoii»htfin r. Ut viioMr, 
9 Hare, R. 2«5, wh«TC Mr. Vire-C'hiiirrllor Wiprairi, in roiiiiiiriitiii^r on 
■ome of the caJM'H Mati-d in tin; proriMiinp MTtion.H fnmi ^ 'JH-'J.'iH, said ; 
'• There mimt, no Hfiuht, l»r »tiir|i r4*r(ainiy in ihi- avrrmrnl of \\w tiilr. ii|Min 
whirh the BiM is fuundi-d, thai thi: drfi-ndani may l>c distinctly int'nrmod 
of the nature of the com*, uhich he is called ii(Min tu nji*et. 'V\u% w th<! 
principle upon which the insufficiency of amhif^uous statemenu hav twen 



280 EQUITY PLEADINGS. [CH. V. 

^ 259. So, if a Bill should be brought in aid of an 
action at law, it should allege, by whom, and against 
whom the action is brought, or is to be brought, and 
the other material circumstances, by which the Court 
may be enabled to judge of the plaintiff's right of ac- 
tion. For, it will never be admitted, that a party 
shall file a Bill, not venturing to state, who are the 
persons, against whom the action is to be brought, nor 
the circumstances touching the right of the plaintiff, 
and the liabilities of the defendants, which may enaUe 
the Court, which is presumed to know the law, to de- 
cide, whether it is a fit case for its interposition, or 
not ; but merely stating circumstances, and averring, 
that the plaintiff has a right against the defendants, or 
against some of them.^ 

^ 260. Lord Redesdale has commented on this sub- 
ject with great clearness and accuracy; and it may 
therefore be useful to quote his very language and illus- 
trations. '^ Though the plaintiff," said he, ^^ in a Bill 
may have an interest in the subject ; yet if he has not 
a proper title to institute a suit concerning it, a de- 
murrer will hold. Therefore, where persons, who had 
obtained letters of administration of the estate of an 
intestate in a foreign Court, on that ground filed a Bill 



put, East India Company o. Henchman, Cresset v. Mitton, Ryveso. Ryres. 
The case of the Mayor and Commonalty of London v. Levy, is another 
case on the same point, although it is no authority in support of the argu- 
ment for the plaintiff. The cases of Jones v, Jones, and Frietas o. Don 
Santos, also support the proposition, that the plaintiff must distinctly aver 
his equitable title. In Walburn v. Ingilby, the demurrer was allowed on 
the ground, that the plaintiff did not specifically state the manner, in which 
his title was derived ; and though a doubt may have been expressed of the 
authority of that case in some respects, yet it has never been doubted, that 
a plaintiff must state his title with sufficient particularity and detail to 
enable the defendant to meet the case upon some definite issue." Ante, 
§ 242, 245, a, 

1 Mayor of London v. Levy, 8 Ves. 400, 404 ; Cooper, Eq. PL 180. 



CH. v.] GENERAL FRAME OF BILLS. 281 

seeking an account of the estate, a demurrer was al- 
lowed; because the plaintiffs did not show hy their 
Bill a complete tide to institute a suit concerning the 
subject ; for, though they might have a right to admin- 
istration in the proper Ecclesiastical Court in England, 
and might, therefore, really have an interest in the 
thing demanded by their Bill, yet not showing, that 
they had obtained such administration, they did not 
show a complete title to institute their suit. And where 
an executor does not ap{)ear by his Bill to have proved 
the will of his testator, or appears to have proved it in 
an improper or insuilicient Court, as he docs not show 
a complete title to sue as executor, a demurrer will 
hold." » 

^261. He then adds; '^Want of interest in the 
sul^ect of a suit, or of a title to institute it, are objec- 
tions to a Bill, seeking any kind of relief, or filed for 
the purpose of discovery merely. Thus, though there 
are few cases, in which a man is not entided to per- 
petuate the testimony of witnesses ; yet, if, upon the 
face of the Bill, the plaintiff appears to have no certain 
right to, or interest in the matter, to which he craves 
leave to examine, in present or in future, a demurrer 
will hold. Therefor^, where a person claiming as dev- 
isee in the will of a {)erson living, but a lunatic, 
brought a Bill to per|)etuate the testimony of witnesses 
to the will against the presumptive heir at law ; and 
where i)ersons, who would have been entitled to the; 
personal estate of a lunatic, if he had been then dead 
intestate, as his next of kin, supposing him legitimate, 
brought a Bill, in the lifetime of the lunatic, to per- 
petuate the testimony of witnesses to his legitimacy 
against the Attorney-General, as supporting the rights 

1 Mitf. Eq. PI. by Jeremy, 155, 156. 
EQ. PL. 36 






282 EQUITY PLEADINGS. [CH. V. 

of the Crown, demurrers were allowed. For the par- 
ties in these cases had no interest, which could be the 
subject of a suit ; they sustained no character, under 
which they could afterwards use the depositions ; and 
therefore the depositions, if taken, would have been 
'wholly nugatory. So, in every case, where the plaintiff 
in a Bill shows only the probability of a future tide, 
upon an event, which may never happen, he has no 
right to institute any suit concerning it ; and a demurrer 
will hold to any kind of Bill on that ground, which 
will extend to any discovery, as well as to relief." * 

§ 262. The Bill, too, should not only show the tide 
and interest of the plaintiff in the subject-matter of the 
suit ; but there must be sufficient averments to show, 
that the defendant also has an interest in the subject- 
matter, and is liable to answer to him therefor.* For 
it has been well remarked, that a plaintiff may have an 
interest in the subject of his suit, and a right to insti- 
tute a suit concerning it, and yet may have no right to 
call on the defendant to answer his demand. This may 
be for want of privity between the plaintiff and the 
defendant. Thus, although an unsatisfied legatee has 
an interest in the estate of his testator, and has a 
right to have it applied to answef his demands in a due 
course of administration ; yet he has no right to insti- 
tute a suit against the debtors to his testator's estate, 
for the purpose of compelling them to pay their debts 
in satisfaction of his legacy. For there is no privity 
between the legatee and the debtors, who are answer- 
able only to the personal representative of the testa- 
tor, unless by collusion between the representative and 
the debtors, or other collateral circumstances, a distinct 



1 Mitf. Eq. PI. by Jeremy, 166, 157. 

9 Mitf. Eq. PI. by Jeremy, 160; Cooper, Eq. PI. 174, 179. 



CH. v.] GENERAL FRAME OF BILLS. 283 

ground is given for a Bill by the legatee against the 
debtors.^ For the same reason, where a debtor is en- 
titled to [Kirt of the residue of the estate, either as h^ga- 
tee, or as distributee, his creditor cannot maintain a 
Bill against the personal representative of the deceased, 
making the debtor, and the other residuary legatees or 
distributees, parties, for the purpose of having the as- 
sets applied towards the payment of his demand.^ 

^ ^53. The Bill also, for the same reason, if it 
founds the right against the defendant upon his having 
notice, should charge it directly ; otherwise, it is not 
matter in issue, on which the Court can act.^ And 
where the notice relied upon is to be ])roved by con- 
fessions or admissions to witnesses, it seems proi)er, 
even if it is not indispensable (as it has been decided 
in England, that it is), to insert in the Bill the dates 
of the confessions or admissions, and the names of 
the witnesses ; for otherwise the defendant will not l)o 
concluded bv their testimonv at the hearin"; ; and the 
Court may direct further inquiries on the subject.^ 

§ 264. The rule even procei.^ds farther ; for, if an 
admission is made in the answer, it will be of no use 
to the plaintiff, unless it is put in issue by some charge 
in the Bill ; and the consecpience is, that the plaintiff 
is frequently obliged to ask leave to amend his Bill, 
although a clear case for relief is apparent U|K>n the 

> Blitf. Kf|. ri by Jt-rviny, l.'>8. Scu :il»o (.'iNipor, Ki(\. PI. 171 - 170; 
Ante, § 178, S»7 ; Pusl, § 51 i. 

« Ibid. 

' He Tususl p. Tavernicr, 1 Kern, H. ir>9. 

* Eifle V. Fickin, 1 Uuhh. Ac MvIih', 517 ; Cirp»Ii'y on K\'u\. *>«. Sre 
■bo Hall 9. Maltliy, ti Price, )iU), *J'»H, 251 » ; Siuitli v. Huriihaiii, "J Siiin- 
ner, R. 612 ; Ilu^hca v. Carm-r, 2 Voiin^e \, ('oil. 3*J8. S^i'v also MuIIpii- 
land v.Hendrick, 1 Mulloy, U. 35*J; S. C. Ikatt. K. 277; Cnihaiii v. 
Oliver, 3 Bcavan, H. I'JI, 12'.»; Post, ^ -Jtid, a; AiiMin r. riKuulirr.s. ft 
Clarke & Fin. 3H; Attwoml v. Small. » (Markc K Fin. 35(). I^^h. 516; 
Copelaod v. Toulman, 7 (Markc & Fin. R. 350, 373, 375 ; Malroltn v. 
Sooct, 3 Hare, R. 3U, 63. 



284 EQUITY P(.EADINGS. [CH. T. 

face of the pleadings.^ This would occur, for exam- 
ple, when a Bill is brought against an executor for an 
account; and it prays an account of the personal 
estate of the testator ; but it does not charge any acts 
of mismanagement or misconduct in the executor, but 
simply charges, that he has received assets. In such 
a case, although the answer should disclose gross acts 
of mismanagement, or wilful negligence and default, 
whereby assets had not been received, yet no decree for 
an account upon such matters could be obtained upon 
a Bill so framed ; for it would not be matter in issue.^ 

^ 265. Care, also, should be taken to frame the 
charging part, and the interrogatory part of the Bill, 
with such certainty, that it may bring out all the facts, 
which are required by the exigency of the case. Thus, 
for example, if the Bill seeks a discovery of money 
received by the defendant, it should, in the interroga- 
tory part, following the charging part, inquire not only, 
whether the defendant had received the money, but 
whether any other person had received it by his order, 
or for his use.^ So, if the Bill inquires about deeds, 
papers, and documents, it should be stated, that they 
are in the custody or power of the defendant, and that 
the truth of the matters in the Bill would appear from 
them ; for, otherwise, a motion to produce them might 
be successfully resisted.^ 

^ 265, a. Another very important rule as to the 
frame of Bills (already alluded to*), seems now estab- 
lished in England ; and that is, that if the Bill means to 
rely upon, any confessions, conversations, or admissions 



^ Gresley on Evidence, 23. ^ Ibid. 

^ Gresley on Evidence, 20, 23. 

^ Gresley on Evidence, 23. See Id. 44, aa to the manner of framing 
interrogatories, 
s Ante, ( 263. 



CH. v.] GENERAL FRAME OF BILLS. 285 

of the defendant, cither written or oral, as proof of 
any facts charged in the Bill (as, for example, of fraud), 
the Bill must expressly charge what such confessions, 
conversations, or admissions are, and to whom made, 
otherwise no evidence thereof will be admitted at the 
hearing. The ground of this doctrine seems to be, 
that othenvise the defendant may be taken by surprise 
and entrapped, since he cannot know that any such 
evidence is intended to be produced, as the interroga- 
tories put by the plamtifT to the witnesses are not made 
known to him.^ Whether the like rule will be allowed 



^ Hall V. Maltby, 6 Price, 210, 258, 330; Kvans v. Bickncll, Vcs. 
163; Mullenland v, Hendrick, 1 Molloy, U. 350; S. C. J)catt. 11. 277; 
Fitigerald v. OTlaherty, 1 Molloy, R. 350; Karlc v. Pickin, 1 Rubs. & 
Ifylne, 547; Graham o. OliTcr, 3 Bcaran, R. 121, 120; Hughes v. (>ar- 
ner.S YoDDge & Coll. 328; Graham v. Oliver, 3 Beavan, U. 121, 120; 
Aimin 9. Chambers, 6 Clarke U Fin. R. 38; Attwood v. Small, (» Clarke 
& Fin. R. 350, 488, 510; Copcland v. Toulman, 7 Clarke & Fin. R. 
360, 373, 375 ; Grcsley on Evidence, 307 ; Ante, $ 228, 2«3. The doc- 
tliiM does not seem to be founded upon any very clear and intelligible 
principle. A confession, a conversation, or an admiHsion, is manifestly 
eompetent evidence of any fart, ^hich is in issue lietween the parties 
to eataUiah that fact. In a trial at law, it is not necessary to give the 
olber party any previous notice that the intention is to rely on evidence 
of aach oonfeasion, admission, or conversation. Why the rule should bo 
otherwiae in Equity, it is not caHv to say. Mr. Baron Alderson, in 
Haglics V. Gamer, 2 Younge & (^oll. 328, seemed to think that if notice 
via charged in a Bill, that proof might be given of that fart by the con- 
fwaainn, or admission, or conversation of the party without licing .s(ate<l in 
tlM Bill. In Austin v. ('hamhcrs, Clarke & Fin. 38, I/ord Cotienham 
nid ; "The Bill alleges, that, prior to the sale, Mr. Austin desired Mr. 
Chamhera to attend, and bid and buy for him. Thi^, Mr. Chambers (ws- 
itively deniea. One witness (Mr. Sinclair) proves it, and proves it in this 
way ; that, a(\er the sale, or at the time of the yale, Mr. ('hambfr.^ made 
aa amngement with the shcrifl*, and aAerwards stited that he had l>id for 
Mr. Auatin, and that Mr. Austin was the purchaser, and that he had liid 
for him, and was his agent in the purchase. Now the Bill charges, that 
the defendant had admitted that he had purchased for his client, Mr. Aus- 
tin, hot it does not chargt: that he had said so to a witness of the name of 
Snelair. If the Bill ha<l charged, that he had said so to .Mr. Sinclair, the 
dHendant would have ha4l an opfNiriunity of crfms-examiiiing Mr. Sinclair, 
or of cimmining other persons who were present at the time, if any per- 



286 EQUITY PLEADINGS. [CH. V. 

to prevail in America, may be deemed a matter open 
to much doubt ; for the like reason does not here 



son could be found, who would dispute the statement, which Mr. Sinclair 
made upon the subject. But as this Bill only sets out as a general alle- 
gation, that he oflen said so, without referring to any one instance in par- 
ticular, the defendant, of course, had no possible means of meeting the 
case made upon the evidence. I have had frequent occasion, in this 
House and elsewhere, to state, that, where I find evidence of an admission, 
and that admission is not put directly in issue by the pleadings, so that the 
party, against whom it was intended to be used, had no opportunity of 
meeting it by other evidence, it would be a most unjust thing to bind the 
interests of the party by an admission so proved, and it would be a way of 
giving facility for producing false evidence, and be very dangerous and 
injurious to the general interests of suitors." In Attwood v. Small, 
6 Clarke & Fin. 516, the same learned Chancellor said; '*Tbe proposi- 
tions arising from these facts are these : an imputation of fraud is made 
against Mr. Attwood, because, when the deputation went down, he pro- 
duced books of the year 1818. Other more recent information was called 
for, and he is represented to have said that there were no yield books 
subsequent to 1818. Then the allegation Lb, that, although that was true, 
yet he had in his possession certain stock papers, which, although they 
would not of themselves show the yield, would have been an it^tn in the 
calculation in order to ascertain them ; that he knew those yield papers 
would show a yield different and less favorable than what it was in 1818, 
and that knowing that he purposely and fraudulently suppressed that in- 
formation. When the cause was argued at your Lordship^s bar, it was 
observed by the counsel for the appellant that there was no such case 
upon the record. I very carefully looked at it at the time ; I have very 
carefully looked at it since ; and I find that observation is perfectly well 
founded, that the Bill does not state any such case. If the Bill states no 
such case, particularly where the attempt is to fix fraud, according to the 
rules of a Court of Equity, you cannot permit the party to go into evi- 
dence for the purpose of proving it, and you cannot infer any thing from 
the circumstance of the defendant in such a Bill not having produced evi- 
dence to repel such an imputation, no such imputation being made upon 
the Bill. That is the reason, why I threw it out of the case ; I considered 
that in so doing I was acting upon the perfectly well ascertained rules of 
a Court of Equity." Lord Brougham, in the same case (p. 488), afl^nned 
the same doctrine. These authorities sufficiently show, that the doctrine 
is now well established in England, upon the notion of the extreme in- 
convenience of allowing the defendant to give evidence which may oper- 
ate a perfect surprise upon the plaintiff*. And it seems applied in cases 
of fraud, not only to the confessions, and admissions, and conversations of 
the plaintiff*, but also to his acts or concealments, when off'ered as evidence 
of the fraud. The doctrine in both respects was much discussed, and 



CH. v.] GENERAL FRAME OF BILLS. 287 

prevail, either to justify or require it, as all the interrog- 
atories and cross-interrogatories, put or intended to be 



gremtly doubted by tbc Court in Smith v. Burnham (1837), 2 Sumner, R. 
618. On that occasion, the Court, aflcr reviewing the authorities at that 
time existing on the Bubjcrt, said ; *' If, then, in the aliaence of authority 
in favor of the rule, wc look to principle, it seems to me impossible, that 
it can be supported. There is no pretence to say, that, in general, it is 
true; that, as to the facts to be put in issue, it is necessary, not only to 
charge these facts in the Bill, but also to state in the Bill the materials of 
proof and testimony, by means of which these facta are to be supported. 
Lord Chancellor Hart has admitted this in the fullest manner, saying : 
' The evidence of facts, whether documentary or not, need not be put in 
issue I evidence of confessions, whether documentary or not, must.* 
Why admissions or conversations, as materials of proof, should be excep- 
tions from the general practice, I profess myself wholly unable to com- 
prehend. Other papers and testimony may be quite as much matters of 
surprise, as documents or testimony, as conversations or admissions ; and 
the drcnmstance, that conversations or admissions are more easily manu- 
fiKtnred than other proofs, furnishes no ground against tbc coni])et<.-nry uf 
auch evidence, but only against its cogency as satisfactory proof. Two 
grounds are relied on to support the exception. The first is, that the de- 
fendant may not be taken by surprise, and (as it has been said) admitted 
out of his estate ; hut may have an opportunity to cross-examine the 
witnesses. The second is, that the def<riidant may have an opportunity, in 
his answer, fully to deny, or to explain the supposed admissions or ron- 
vcrsations. Now, the former grouml is wholly inapplicable to our prac- 
tice, where the interrogatories and cross-interrogatories put to every wit- 
neaa an fully known to bc»th parties; and, indeed, in the laxity of our 
practice, where the answers of the witness are usually as well known to 
both parties. So that there is no general ground for imputing surprise. 
Indeed, in this very cahc, it is admitted by the leanied counsel for the de- 
fendant, that there has not been any surprise. The second ground is 
applicable here. But, then, prrHifs, doeumeiitary or otherwise, may bt; 
ofleied as evidence of facts charge<l in the Hill, as well as admissions and 
cooverMtions, which it might be e<)ually important for the det'cuilant to 
have an opp«irtunity to deny or to explain, in order to support his defi-nce. 
Yet the evidmcc of such facts is not, thereture, inadniiM»ilile. S«i that 
the eiception is not coextensive with the supiMised misf^bn-f. itut it 
■ecma to mc, that the exception would itself be iiiir(Kluciive of inurli of 
tlie mischief, agamM which the practice of the Knglish t'ourt of Clianrery 
iadeagned to guard suitors. In general, the testimony to be ^Mven by 
witneMCi in a cause at iHsue in Chancery, is studiously concrab-d until 
after publication is formally auiboriz4.'d by the Court. The witness«.'B are 
•xaouned in secret up«»n interrogatorit« not previously made known to the 
other party. The object of this course is to prevent the fabrication of 



288 EQUITY PLEADINGS. [CH. V. 

put to the witnesses, are required to be made known 
to the other party before any of them are examined, 



new evidence to meet the exigencies of the cause, and to take away the 
temptations to tamper with the witnesses. Now, if the exception be well 
founded, it will (as has been strongly pressed by counsel) afford great op- 
portunities and great temptations to tamper with witnesses, who are 
known to be called to testify to particular admissions and cooversations. 
So that it may well be doubted, whether, consistently with the avowed 
objects of the English doctrines on this subject, such an exception could 
be safely introduced into the English Chancery. There is another diffi- 
culty in admitting the exception ; and that is, that there is no reciprocity 
in it ; for, while the defendant in a suit would have the full benefit of it, 
the plaintiff* would have none, since his own admissions and conversations 
might be used, as rebutting evidence, against his claims asserted in the 
Bill, although they were not specifically referred to in the answer. Several 
cases have been referred to, both in the English and American Reports, 
in which the case has been mainly decided upon the admissions or conver- 
sations of the parties, which were not specifically stated in the Bill, or 
other pleadings. I have examined those cases; and, although it is not 
positively certain, that there were not, in any instance, any such admis- 
sions or conversations charged in the Bill ; yet there is the strongest 
reason to believe, that such was the fact ; and no comment of the counsel 
or of the Court would lead us to the supposition, that there was imagined 
to be any irregularity in the evidence. I allude to the cases of Lench v. 
Lench, 10 Yes. R. 511 ; Besant v. Richards, 1 Tamlyn, R. 509 ; Neath- 
way V. Ham, 1 Tamlyn, R. 316; Necot v. Barnard, 4 Russ. R. 247; 
Parle v. Peele, 1 Paige, R. 477; Marks v. Pell, 1 John. Ch. R. 694 ; 
and Harding v. Wheaton, 11 Wheat. R. 103; S. C. 2 Mason, R. 375. 
So far as my own recollection of the practice in the Courts of the United 
States has gone, I can say, that I have not the slightest knowledge, that 
any such exception has ever been urged in the Circuit Courts, or in the 
Supreme Court, although numerous occasions have existed, in which, if 
it was a valid objection, it must have been highly important, if not abso- 
lutely decisive. Until a comparatively recent period, I was not aware, 
that any such rule was insisted on in England or America, notwithstand- 
ing the case of Hall v. Maltby, 6 Price, R. 250, 252, 258. Indeed, 
Mr. Gresley, in his late Treatise on Evidence, has not recognized any 
such rule, although, in one passage, the subject was directly under his 
consideration, and he relied for a more general purpose on that very case. 
If it had been clearly settled in England, it would scarcely have escaped 
the attention of any elementary writer, professedly discussing the general 
doctrines of evidence in Courts of Equity. My opinion is, that the prin- 
ciple to be deduced from the case in 6 Price, R. 250, before Lord Chief 
Baron Richards, supported, as it is, by the other cases already cited before 
Lord Chancellor Hart, is not of sufficient authority to establish the excep- 



CH. v.] GENERAL FRAME OF BILLS. 289 

or at the time of examination ; and thus neither ])arty 
can be under any surprise, if the interrogatories point 
to any confessions, or conversations, or admis^ons, 
made to any witness.^ 



tion contended for, as an^exreption known and acted upon in the Court of 
Chancery in England, whose practice, and not that of the Court of Ex- 
chequer, furnishes the basis of the Equity practice of the (.'ourts of the 
Fnited States. I have a very strong impression, that, in America, the 
generally received, if not the imiversal practice, is against the validity of 
the exception. If the authorities were clear the other way* I should fol- 
low them. But if I am to decide the point upon general principles, inde- 
pendent of authority, I must say, that I cannot (Hirsuade myself, that the 
exception ia well founded in the doctrines of Fi4]uity jurisprudence, :is to 
pleadings or evidence/* In Malcolm r. Scott, 3 Hare, R. 39, 63. Mr. 
Vice-Chancellor Wigram used the following language where certain let- 
trra were offered in evidence and not charged as such in the Hill. '* An- 
other objection was, that the letters principally relied upon were not 
charged in the Bill, and it was urged that they were, therefore, inadmissi- 
ble. The cases of Whitley v. Martin, 3 Beavan, H. 22A, and (rrahani v. 
Oliver, 3 Beavan. U. V2ij were cited, to which I have very oi\cii been re- 
ferred. They appear to me to be cited for a pmposition much broaiJiT 
than Lord longdate ever meant to lay down. It is very difficult to s:iy, 
that those particular cases could have been <lecided otherwise than they 
were ; but the marginal notes iro much fartlier than the judgment!*. TIiih 
Bill, however, expressly charjics, that there was an ajrreement fnr ^riving 
the lien in question, and I am perfectly clear, according to the rule Lord 
Tottenham laid down, tliat, whatever would be the evidence of an nsrce- 
nieot at law is evidence in Equity, subject to this, that, if nnt> party 
ahould keep back evidence which the other mif;ht explain, and therrby 
lake him by suqirise, the f'ourt will give nn effect to such evidencf, with- 
out first giving the party to )>e atTected by it an opfMirt unity of con trn vert- 
ing it. The only obsc'rvatinn I make as to the absence of the Irttrrs in 
the Bill is, that, as this iH a proceeding againftt ]»arties abroad, I sin mid 
have been very much <liMnc!ined to grant the injunction against thi ni if 1 
had found the plaintitf had kfpt back letterM which might h:i\<* been 
communicated to the particH in Intiia, and to which theymiirht h:ive L'ivrn 
au answer. It is not undeNervmu of remark, that the only Iftt'T n-licd 
upon ia that of the Iftth of January, 1h||, and the other letters an* mere- 
ly referred to generally, and are not statud as giving a lien ; they are ad- 
duced merely to support the (genera] statement, that a lien had U'cn ui^^'u. 
I do not, however, dispose of the east* upon tbisnarniw ground ; altlionsh, 
perhaps, 1 might, as a matter of pleading, have done so.** 8i-e almi 
Whitley v. Martin. 3 Beavan. H. 2iH\. 

> 8m Smith r. Burnham, H Sumner, U. 62*^. 

EQ. PL. 37 



290 EQUITY PLEADINGS. [CH. V. 

§ 266. On the other hand, care must be taken not 
to overload Bills by superfluous allegations and redun- 
dant and unnecessary statements, or by scandalous 
and impertinent matter ; for if any Bill be found such, 
upon due reference to and report of a Master, the 
plaintiff and his counsel will be liable to pay costs.* 
Impertinence is the introduction of any matters into a 
Bill, answer, or other pleading or proceeding in a 
suit, which are not properly before the Court for decis- 
ion at any particular stage of the suit.^ One of the 
Ordinances of the Court of Chancery, constituting a 

1 Milf. Eq. PI. by Jeremy, 48; Gilb. For. Rom. 91 ; Emerson v. Dal- 
liflon, 1 Ch. Rep. 194 ; Willis v, Evans, 2 B. & Beatt. 228 ; 3 Wooddes. 
Led. 55, p. 373. An exception for impertinence must be supported in 
totOj or it will fail altogether. Wagstaff v. Bryan, 1 Russ. & Mylne, R. 
30. See Tench v. Cheese, 1 Beavan, R. 571, 574, and cases on imperti- 
nence generally cited ; Id. p. 575, note. 

» Wood V. Mann, 1 Sumner, R. 506,578. The 26ih and 27th Rules 
of the Equity Rules of the Supreme Court of the United States, January 
Term, 1842, are as follows; *' Every Bill shall be expressed in as brief 
and succinct terms as it reasonably can be, and shall contain no unneces- 
sary recitals of deeds, documents, contracts, or other instruments, in 
?usc verba, or any other impertinent matter, or any scandalous matter not 
relevant to the suit. If it does, it may, on exceptions, be referred to a 
Master by any judge of the Court for impertinence, or scandal, and, if so 
found by him, the matter shall be expunged at the expense of the plain- 
tiff, and he shall pay to the defendant all his costs in the suit up to that 
time, unless the Court, or a judge thereof, shall otherwise order. If the 
ilMter shall report, that the Bill is not scandalous or impertinent, the 
plaintiff shall be entitled to all costs occasioned by the reference." — ** No 
order shall be made by any judge for referring any Bill, answer, or plead- 
ing, or other matter, or proceeding depending before the Court for scandal 
or impertinence, unless exceptions are taken in writing and signed by 
counsel, describing the particular passages, which are considered to be 
scandalous or impertinent ; nor unless the exceptions shall be filed on or 
before the next rule day, after the process on the Bill shall be returnable, 
or afler the answer or pleading is filed. And such order, when obtained, 
shall be considered as abandoned, unless the party obtaining the order 
shall, without any unnecessary delay, procure the Master to examine and 
report for the same, on or before the next succeeding rule day, or the 
Master shall certify, that further time is necessary for him to complete the 
examination." 



CH. v.] GENERAL FRAME OF BILLS. 291 

fundamental rule of the Court, is aimed aj;;ainst this 
transgression of the good sense, as well as the good 
taste, of Equity Pleadings. It declares, " That coun- 
sel are to take care, that the same (Bills, answers, and 
other pleadings) be not stuflcd with re[)etitions of 
deeds, writings, or records, in fuec verba ; but, that the 
efiect and sul)stance of so much of them only, as is 
pertinent and material, be set down, and that in brief 
terms, without long and needless traverses of i)oints, 
not traversable, tautologies, multiplication of words, or 
other impertinences, occasioning needless prolixity ; to 
the end, the ancient brevity and succinctness in Bills 
and other pleadings may be restored and observed. 
Much less may any counsel insert therein matter mere- 
ly criminous or scandalous, under the penalty of good 
costs to be laid on such counsel." ^ 

^ 267. However ; in cases of mere impertinence, 
the Court will not, because there are here and there a 



» Beames, Onl. in Ch. 165-167; Id. 25; Id. fil), 70; Wyatt, Prart. 
Reg. 57, 58; Cooper, I*^. PI. IH, 19; Iluud v. Ininan, 4 John. Cli. R. 
437. Mr. Cooper, in his }*)«p]ity PKsadings (p. P.)), says; ''Prolixity 
appean to have been anciently a fault in a Dill of the kind alMive 
mentioned. And Lord Keeper Hacon, to prevent it, appears to huvn 
Bade an order, that no Dill shall contain above fii^ccn sheets of paper, 
which, by a subseiiucnt order of Lord Chancellor Kgerton, were to be 
written fifteen lines in a sheet ; and if the complainant exceeded the al- 
lotted quantity, it was a ^rouml of demurrer; but uiiich was afterwards 
changed into rccom]>eiisin)|f the defendant by costs, as is at present dono 
for irrelevant matter. The letter of this rule of ]>liadint^ ha-n been Ion*; 
done away ; but the principle of it htill remains in the exisiin<! rules of 
the Conrt, as to sc^andal and iniportinence. and in the re^rulated iiuantiiy 
of writing in oflSce-oojiies, which may lie traced to the alnive anciint m- 
den for their foundaium and origin.** It is clearly iiii|iertinencr not only 
to state irrelevant f:icis, but to cite public statutes at lar^^e, or to state 
matters of law ; for the Court is bound to take juilicial notice of the laittT, 
without any averment. 1 Mont. Va\. Pi. 'Jt) ; "2 Mont. V^\. PI. !»1, !CJ. 
Sec the SGth and *i7th of the l*^{uity Rules of the 8u]»reme Court of the 
United Sutes, January Term, IbPJ, cited Supra, §e<Wi, note ; 1 Howard, 
R. Introd. p. 49, 50 ; 17 Peters, K. Appendix, p. 65, 6C. 



292 EQUITY PLEADINGS. [CH. v'. 

few unnecessary words, treat them as impertinent ; for 
the rule is designed to prevent oppression, and is not 
to be so construed, as to become itself oppressive.^ Nor 
will the Court, in cases of alleged impertinence, order 
the matter alleged to be impertinent to be struck out, 
unless in cases where the impertinence is very fully 
and clearly made out ; for if it is erroneously struck out, 
the error is irremediable ; but if it is not struck out, the 
Court may set the matter right in point of costs.^ 

§ 268. In examining the question, whether an al- 
legation or statement in the Bill is relevant or perti- 
nent, it must be recollected, that a Bill in Chancery is 
not only a pleading for the purpose of bringing be- 
fore the Court, and putting in issue the material alle- 
gations and charges, upon which the plaintiff's right 
to relief rests, as is done in a declaration in a suit at 
law ; but it is also, in most cases, an examination of 
the defendant upon oath, for the purpose of obtaining 
evidence to establish the plaintiff's case, or to counter- 
prove or destroy the defence, which may be set up by 
such defendant in his answer. The plaintiff may, 
therefore, state any matter of evidence in the Bill, or 
any collateral fact, the admission of which, by the de- 
fendant, may be material in establishing the general 



' Del Pont V. De Tastet, 1 Turn. & Russ. 489. 

« Davis V. Cripps, 2 Younge & Coll. New Rep. 443, where Mr. Vice- 
Chancellor Bruce said; "The Court, in cases of impertinence, ouf^ht, 
before expunging the matter alleged to be impertinent, to be especially 
clear, that it is such as ought to be struck out of the record, for this rea- 
son, that the error on one side is irremediable, on the other not. If the 
Court strikes it out of the record, it is gone, and the party may then have 
no opportunity of placing it there again ; whereas, if it is left on the 
record, and is prolix or oppressive, the Court, at the hearing of the cause, 
has power to set the matter right in point of costs. That consideration 
has been alluded to by Lord Eldon, in Parker v. Fairlie, and other cases. 
It ought to be clear to demonstration, that the matter complained of is im- 
pertinent, before that which, if wrong, is irremediable, is done." 



CH. T.] GENERAL FRAME OF BILLS. 293 

allegations of the Bill, as a pleading, or in ascertain- 
ing or determining the nature, and the extent, and the 
kind of relief, to which the plaintiff may be entitled, 
consistently with tlie case made hy the Bill ; or which 
may legally influence the Court in determining the 
question of costs. And where any allegation or state- 
ment contained in the Bill may thus aflect the decision 
of the cause, if admitted by the defendant, or estab- 
lished by proof, it is relevant, and cannot be excepted 
to, as impertinent.* 

^ 269. It was to prevent these glaring faults of 
scandal and impertinence, alike mischievous and op- 
pressive (which might make the records of the Courts 
the vehicles of slander or idle gossip), that Courts of 
Equity, at a very early period, required (as wo have 
seen) all Bills to have the signature of counsel aflixed 
to them ; ^ and if no such signature appears, or the 
signature is not genuine, the Bill will be dismissed, or 
ordered to be taken off the files of the Couri,^ If 
either of these faults exist in a Bill, it may l)e objected 
to by the defendant in the first stages of the cause, 
upon a motion to refer it to the Master, to inquire into 
the foundation of the objection. But nothing, which 
is positively relevant to the merits of the cause, how- 
ever harsh or gross the charge may 1m*, can 1x3 correctly 
treated as scandalous. Thus, for example, in Bills to 
set aside deeds, or other instruments, for fraud, there 
are often to be found gross charges in relation to the 
matter of the asserted fraud. But these charges are 



' Hiwley r. Wulvcrion. it Vml'*', H. .VJS ; Mcrhanir*' Bank r. Iicvv, 
3 Paige, R. 6(W». 

* Ante, ^ 17. 

> Cooper, Bq. PI. H. \Si : Mitf. Kj. Tl. I»y Jt-niiiy. 4h and unw (a); 
Dilkm V. Francis, I Dick. K. tiM ; Frciirh v. J)«*ar, 5 Vrs. TilT; Whit- 
gftTenny v. Abergavenny, tf P. Will. 3I'J; Ante, § 47 and notu. 



294 EQUITY PLEADINGS. [CH. V. 

not, by any rule of the Court, to be deemed scanda- 
lous. And, indeed, such a proceeding might be dan- 
gerous to the cause itself, and prevent a due investiga- 
tion of its merits. Hence it is, that nothing pertinent 
to the cause is ever deemed scandalous ; and the 
degree of the relevancy is not deemed material.* 

^ 270. It is obvious, that a Bill may contain matter, 
which is impertinent, without the matter being scan- 
dalous ; but if, in a technical sense, it is scandalous, it 
must be impertinent.* According to the ordinary 
practice of the Court, a Bill cannot be referred for 
impertinence, after the defendant has answered, or has 
submitted to answer.* But it may be referred for 
scandal at any time ; ^ and even, by leave of the Court, 
upon the application of a stranger to the suit.* The 
reason of the difference seems to be, that mere imper- 
tinence is not in itself prejudicial to any one ; it is but 
a naked superfluity. But scandal is calculated to do 
great and permanent injury to all persons, whom it af- 
fects, by making the records of the Court the means 
of perpetuating libellous and malignant slanders ; and 
the Court, in aid of the public morals, is bound to 
interfere to suppress such indecencies, which may stain 
the reputation and wound the feelings of the parties 
and their relatives and friends/ 



1 Cooper, Eq. PI. 19 ; Fenhoulet v. Passavant, 2 Ves. 24 ; St. John v, 
St. John, 11 Ves. 526, 539; Coffin r. Cooper, 6 Ves. 514 ; Ex parte 
Simpson, 15 Ves. 477. 

9 Cooper, Eq. PJ. 19; Fenhoulet v. Passavant, 2 Ves. 24 ; Ex parte 
Simpson, 15 Ves. 477. 

3 Gilb. For. Rom. 91 ; Cooper, Eq. PI. 19. 

* Cooper, Eq. PI. 19; Anon. 2 Ves. 631. 

5 Coffin V. Cooper, 6 Ves. 514 ; Williams v. Douglas, 5 Beavan, R. 82. 

6 In Ex parte Simpson, 15 Ves. 477, Lord Eldon said ; *' If that, 
which is stated, is material to the issue, it may be false ; but cannot be 
scandalous: if relevant, it is not impertinent, though scandalous in its 
nature ; if relevant and pertinent, it cannot be treated as scandalous ; and 



CH. v.] GENERAL FRAME OF BILLS. 295 

^271. In the next place, a Bill should not be, what 
is technically termed, multifarious ; for if it is so, it is 
demurrable, and may be dismissed by the Court of its 
accord, even if not objected to by the defendant.^ By 
multifariousness in a Bill is meant the improperly join- 
ing in one Bill distinct and independent matters, and 
thereby confounding; them ; as, for example, the uniting 
in one Bill of several matters, perfectly distinct and 
unconnected, against one defendant, or the demand of 
several matters of a distinct and independent nature 



if false, it must be dealt with in another way. But, if irrelevant, and 
especially if also seandalous, there would be much reason to rejrret, that 
a Court should nut be armed with the power to protect parties from the 
expense, and its reconls from the stain, which too frequently arise from 
the introduction of irrelevant and scandalous matter upon affidavits in 
this jurisdiction.'* And again ; *' The Court ought to take care, that in a 
suit, or in this proceeding (in liankruptcy), allegations, bearing cruelly on 
the moral character uf individuals, and nut relevant to the subject, shall 
not be put upon the record/' 

* Mitf. ¥jc\, pi. by Jeremy, 1^1 and note ; Cooper, l'>i. PI. 1H2. Mul- 
tifariousness must be objected to by the defendant on demurrer, and can- 
not be objected tu by him at the hearing. Want v. Cuuke, 5 Madd. ]l. 
122 ; Wynne r. Cailen<ler, 1 Russ. H. '2\)3 ; Whaley v. Dawson, '2 Sch. 
& Ijefr. 370, 371. Hut the Tourt may, however, take the objection at 
the hearing nd tpimtf ; for the (.'unrt is nut bound tu alluw a Hill of such 
a nature, although the party may nut take the objection in season, (ireen- 
wood V. Churchill, I Mylne A: K. 55!l. The reason, why multifarious- 
ness must be taken by the defendant by demurrer, and not at the hearing, 
is said by 1/ord Kcdchdalu to bt?, that the objection of muIiifariouMness 
proceeds ontbift ground, that though the union of distinct matters, in some 
cases, avoidii multi{i!ii'ity of HuitH ; yet it crrates unnecessary troii!)l(> and 
expense to the party, who has no mncein with the other transnrtion, by 
putting him to the tronbh* and cxiK-'Uhc of a liiiuatiMl ifuestion. with whirh 
he has nothini; to dn. ThiN can In* takrn advaniagp of only by df'niurrer ; 
biHTause, if the di-frmlant aiiNMcr, the e\pfMiM> is in a great measure in- 
curred ; and it will hv tiMi lati' lor him to complain, wht-n he chooM'.H to 
suflfer the cause to pmri'i'd to a ht^anng. \V hairy r. Dawson, 9 Srh. & 
liefr. 371. As to iiii««jiiiiiiIiT of partii'«, wr Ant*-, ^ 2n3. 'j:i7 : Post, 
( 5«U, 530, i'A^ - 5 1 1 . f} 1 1 . A J* to cases vi lirre thr iib}«'ction ol' niiiliirari- 
ouMiesa has \tvvn ovi-rruKd. .sr Post. J v:7h, a, iJHt», ;»hl, o, 5:««»-5|0; 
IluggaitV. (^utbs, 1 Craig Ai Phill. 'J04. 



296 EQUITY PLEADINGS. [CH. V. 

against several defendants in the same Bill.^ In the 
latter case, the proceeding would be oppressive, be- 
cause it would tend to load each defendant with an 
unnecessary burden of costs, by swelling the pleadings 
with the statement of the several claims of the other 
defendants, with which he has no connection.^ In the 
former case, the defendant would be compellable to 
unite, in his answer and defence, different matters 
wholly unconnected with each other ; and thus the 
proofs, applicable to each, would be apt to be con- 
founded with each other, and great delays would be 
occasioned by waiting for the proofs respecting one of 
the matters, when the others might be fully ripe for a 
hearing,^ Indeed, Courts of Equity, in cases of this 
sort, are anxious to preserve some analogy to the com- 
parative simplicity of proceedings at the Common Law, 
and thus to prevent confusion in their own pleadings, 

as well as in their own decrees.^ 

-* _________^« 

1 Cooper, Eq. PI. 182; Mitf. Eq. PI. by Jeremy, 181 and note; West 
V, Randall, 2 Mason, R. 201; Saxlon v. Davis, 18 Ves. 80; Berke v. 
Harris, Hardr. R. 337 ; Fellows v. Fellows, 4 Cowen, R. 682. ** Seek- 
ing,^' said Lord Eldon, ** to enforce different demands against persons 
liable respectively, but not as connected with each other, it (the Bill) is 
clearly multifarious." Saxton v. Davis, 10 Ves. 80. See also West v. 
Randall, 2 Mason, R. 181; Post, § 530, 531, 538-541. Perhaps in 
strictness of language, it would be more correct to call it a misjoinder, 
where different and distinct claims are mixed up in the same Bill, against 
the same defendant. Campbell v. Mackay, 1 Mylne & Craig, R. 618. 
See also Attorney -General v. St. John's College, 7 Sim. R. 241 ; Post, 
§ 530-532. See Hoggart v. Cutts, 1 Craig & Phill. 204 ; Bignold v. 
Audland, 11 Sim. R. 24, where a demurrer to a Bill of interpleader was 
held multifarious ; Post, § 284, 291. 

2 Mitf. Eq. PI. by Jeremy, 181 ; Cooper, Eq. PI. 183 ; Ward v. Duke 
of Northumberland, 2 Anst. R. 469 ; Benverie v. Prentice, 1 Bro. Ch. R. 
200; Berke v. Harris, Hardr. R. 337; Whaley v. Dawson, 2 Sch. & 
Lefr. 371 ; West v. Randall, 2 Mason, R. 201 ; Brinckerhoff v. Brown, 
6 John. Ch. R. 139 ; Fellows v. Fellows, 4 Cowen, R. 682 ; Post, § 530. 

3 Whaley v. Dawson, 2 Sch. & Lefr. 371; Berke v. Harris, Hardr. 
R. 337; Boyd v, Hoyt, 5 Paige, R. 65; Post, § 530. 

< Cooper, Eq. PI. 182 ; Post, § 530. 



CH. T.] GENERAL FRAME OF BILLS. 297 

§ 271 9 a. But the objection must still be confined to 
cases, where the case of each particular defendant is 
entirely distinct and separate in its subject-matter 
from that of the other defendants ; for the case against 
one defendant may be so entire, as to be incapable of 
being prosecuted in several suits ; and yet some other 
defendant may be a necessary party to some portion 
only of the case stated. In the latter case, the objec- 
tion of multifariousness could not be allowed to pre- 
Tail.^ So, it is not indispensable, that all the parties 
should have an interest in all the matters contained in 
the suit ; it will l)e suflicient, if each party has an in- 
terest in some matters in the suit, and they are con- 
nected with the others.^ 

§ 272. A few examples may illustrate this doctrine 
of multifariousness in each of its branches. Thus, if 
an estate should be sold in lots to different persons, th(^ 
purchasers could not join in exhibiting one Bill against 
the vendor for a specific performance ; for each party's 
case would be distinct, and would depend upon its 
own peculiar circumstances;^ and, therefore, there 
should be a distinct Bill upon each contract. On the 
other hand, the vendor, in th(^ like case, would not l>c 
allowed to file one Bill for a specific performance 
against all the purchasers of the estate, for the same 

* Attorney-General r. Poole, 4 Mylnc & Crai^^, R. 17, 31 ; Turnrr r. 
Riibiiuoii, 1 Sim. & Stii. 313; Attorney-(iPn«Tal v. <-nulock, 3 Mylm'At 
Cnig, S5; Post, 4 *-*7K o- MuItifarioiiKncss an to oiio clcfrndant, ronsti- 
tulet no oecewary (ttouikI of ohjf.'ctinn by tlio other <lcfendantii ; for a Hill 
mmy be multifarimis an to one dpfciMlant, and not as u> the nu>t. A(t«iriiry- 
Ganenl v. Cradock, H Sirn. H. \m ; S. C'. 3 Mylne & (-rai^, 1^5; PoHt. 
$974 and note, :!H|, ri30, 53>^, 53!» and notr. Sec also LumMJen v. 
Fmer, 7 Sim. R. 5:ir» ; S. C. I Mylno & Trai)?, Hf^«; Ante, { *SM\, a. 

' Addiaon v. Walker. 1 Voungc & (.*oll. 4-11. Sec Parr r. Attorncy- 
Genenl, 8 Clarke & Fin. 435. 

3 Cooper, Flq. PI. IHtf ; Kayner r. Julian, 8 Dick. 11. G77 ; Hrookes v. 
Lord Whilworth, 1 Madd. R.HB ; Post, ^ 530-533. 

EQ. PL. 38 



298 EQUITY PLEADINGS. [CH. V. 

reason.* So, if a Bill should be brought for a specific 
performance upon the sale of an estate, it would be 
multifariousness to include in such a Bill, a prayer for 
relief against third persons, who should claim an inter- 
est in the estate, and who were unconnected with the 
sale.^ Thus, for example, if a purchaser of an equity 
of redemption under a contract of sale, should file a 
Bill for a specific performance, he could not properly 
join the mortgagee in such Bill, or any third person, 
claiming an interest in the equity of redemption, who 
had not joined in the contract.^ 

1 Cooper, Eq. PI. 182 ; Brookes v. Lord Whitworth, 1 Madd. R. 86; 
Lumsden v. Frazer, 7 Sim. R. 555 ; S. C. 1 Mylne & Craig, R. 589. 

2 Mole V. Smith, Jac. R. 490, 494. 

3 Tasker f). Small, 3 Mylne & Craig, R. 63, 68-71. On this occa- 
sion, Lord Cottenham said ; '* It is not disputed, that, generally, to a Bill 
for a specific performance of a contract of sale, the parties to the con- 
tract only are the proper parties ; and, when the ground of the jurisdic- 
tion of Courts of Equity in suits of that kind is considered, it could not 
properly be otherwise. The Court assumes jurisdiction in such cases, 
because a Court of Law, giving damages only for the non-performance of 
the contract, in many cases does not afford an adequate remedy. But, in 
Equity, as well as at law, the contract constitutes the right, and regulates 
the liabilities of the parties ; and the object of both proceedings is to 
place the party complaining as nearly as possible in the same situation, as 
the defendant had agreed, that he should be placed in. It is obvious, 
that persons, strangers to the contract, and, therefore, neither entitled to 
the right, nor subject to the liabilities, which arise out of it, are as much 
strangers to a proceeding to enforce the execution of it, as they are to a 
proceeding to recover damages for the breach of it. And so is the 
admitted practice of the Court. But it is said, that this case ought to be 
an exception to the rule, because Phillips, in whom, as first mortgagee, 
the legal estate is vested, is not willing to convey it to the plaintiff, the 
purchaser, without having competent authority for so doing, and that, 
the question being raised, whether the legal estate can be so conveyed, 
Mrs. Small is of necessity made a party to the suit. This proposition 
assumes two points ; first, that Phillips is himself a proper party to the 
suit ; and, secondly, that, being so, it is competent for him to require, 
that Mrs. Small should be made a party to it. Phillips is merely a mort- 
gagee, against whom no Bill can properly be filed, except for the purpose 
of redeeming his mortgage, and that by a party entitled to redeem. 
This Bill does not pray any redemption of Phillips's mortgage, and, if it 



CH. v.] GENERAL FRAME OF BILLS. 299 

^ 273. So, where a Bill was brought against a cor- 
poration to establish eight charitable l)oquests, of wiiicii 
seven were for the benefit of poor members of the cor- 

bad, the plaintifT would not be entitled to file siieh a Bill. He is only 
connected with the property by having contracted to purchase the rqnity 
of redemption, and, until that purchase is completed, he cannot redeem 
the mortgage. Phillips has no interest in the dpeeific performance of 
the contract ; ho is no party to it ; and the performance of it cannot 
iflfect his security or interfere with his remedies. Supposing, however, 
that it waa competent for the plaintiff to redeem Phillips^s mortgage, he 
can only be so entitled as standing in the place of tho mortgagor ; but a 
niortgagee can never refuse to restore to his mortgagor, or those, who 
claim under him, upon repayment of what is due upon the mortgage, 
the eatate, which became vested in him as mortgagee. To him it is im- 
material, upon repayment of the money, whether the mortgagor's title 
was good or bad. He is not at liberty to dispute it, any more than a 
tenant is at liberty to dispute his landlord's title. Phillips, therefore, is 
bonnd, upon payment, to restore the legal estate to his mortgagor, or to 
tboae who claim under him. By Phillips's mortgage deed, the equity of 
redemption was reserved to Small. If the plaintiff could show such 
equity of redemption to be vested in him, he would be entitled, upon 
paying the mortgage debt, to demand a reconveyance of the estate, with- 
out regard to any other question alfecting the title to the property. I 
am, therefore, of opinion, that Philli]>s himself is not a proper party to 
thb suit, and that he cannot, by not himself in.sisting up«m the ol>jee- 
tion, make Mra. Small a proper party ; and that, even if he were liim.self 
properly made a defendant, the objection raised by him at the bar, though 
not by hia answer, — for by his answer he olTers to reconvey upon l>eing 
paid hia mortgage debt, — would not make Mrs. Small a proper party. 
But it waa argued at the bur, that the plaintitT was, in I<>iuity, invehicd 
with all the rights of Mrs. Small, upon the principle, that by a contract 
of pnrchaae, the purchaser l>ccomes in I'ltjuity the owner of the property. 
Thia rule applieb only as between the parties to the contract, and cannot 
be extended su as Ut alfrct the inten'Nts <if utherM. If it could, a contract 
for the purchase of an ei^uitalile estate would be equivalent to a c<iiivt:y- 
aooe of it. Bef(»rc the contract is carried into etTfct, the purchaser can- 
not, againat a stranger to the contract, enforce equities attaching to the, 
property. In Mole v. Smith, Jac. 41K), Iitiid Kldon says, that when a 
Bdl ia filed for a specific |MTf<»rMianf*e, it should not be mixed up uith a 
prayer fur relief against otht;r persons claiminu an interest in the estate. 
Such waa hia opiniKin in a c:ise in which the vendor was plaintitT, ami the 
defendanta were persons whom tli<; vendor sought to comiiel to join in 
eoBpleting the title. How much stronger is the objection, ^KllL■rl' the 
porchaaer ia the plaintifT, and the only connection between him ami the 
defendanta ia the incomplete disputed contract." 



300 EQUITY PLEADINGS. [CH. V. 

poration exclusively, and the eighth was subject to a 
fixed payment to another corporation, which made the 
latter a necessary party thereto ; it was held, that the 
Bill was multifarious; for the latter corporation had 
no interest in the other seven charities.^ 

§ 274. For the same reason, where a Bill by a 
creditor sought an account against an executor and 
trustee of the testator's estate, and also to set aside a 
sale made by the executor and trustee to a purchaser, 
who was made a party to the Bill ; it was held demur- 
rable for multifariousness ; for the purchaser had noth- 
ing to do with the general settlement of the accounts 
of the estate, and ought not to be involved in any 
litigation respecting it.* 



1 Attorney-Greoeral v. Merchant Tailors^ Company, 1 Mylne & Keen, 
R. 189 ; Post, ^ 532, 533. 

9 Salvidge v. Hyde, Jacob, R. 151 ; S. C. 5 Madd. 138. In this case, 
the Lord Chancellor overruled the decision made by the Vice-Chancel- 
lor, reported in 5 Madd. 138, which overruled the demurrer by the pur- 
chaser. On that occasion, the Vice-chancellor said; *' To this Bill the 
defendant, Laying, has demurred for multifariousness ; and it is alleged 
for him, that he has no concern with the general accounts of the testator's 
estate, and that he ought not to be joined as a party in a suit for such 
purposes ; but that, if it were thought fit to impeach the sale made to him, 
it ought to have been the subject of a distinct Bill. In order to determine, 
whether a suit is multifarious, or, in other wor^s, contains distinct matters, 
the inquiry is not, as this defendant supposes, whether each defendant is 
connected with every branch of the cause ; but whether the plaintiff's 
Bill seeks relief in respect of matters, which are in their nature separate 
and distinct. If the object of the suit be single, but it happens, that difier- 
ent persons have separate interests in distinct questions, which arise out of 
that single object, it necessarily foJlows, that such different persons must 
be brought before the Court, in order that the suit may conclude the 
whole subject. Here, the Bill has the single object of an account of the 
real and personal estate of this testator ; and that account in part depends 
upon the question, whether the defendant Laying is, or not, to be consid- 
ered as the purchaser of this property." See Campbell v. Mackay, 1 
Mylne & Craig, 603, 617-625; Ante, §272, a; Post, § 578, a. See 
also Attorney-General v. Cradock, 3 Mylne & Craig, 85, in which Sal- 
vidge V. Hyde is much commented on by Lord Cottenham. Poet, § 589, 
oote. 



CH. v.] GENERAL FRAME OF BILLS. 301 

§ 274, a. So, where devisees and legatees brouglit a 
Bill against the trustees and executors under a will, 
and against a mortgagee of a part of tiie estates, alleg- 
ing collusion between the trustees and executors and 
the mortgagee, and that they refused to compel the 
mortgagee to account for the rents and profits, or to 
redeem the mortgage, and the Bill prayed for an ac- 
count of the testator's effects, and that the mortgage 
might be redeemed ; the Bill was held, on a demurrer 
by the mortgagee, to be multifarious; for the mortga- 
gee had nothing to do with the general settlement of 
the accounts of the estate.^ 

^ 275. So, where a Bill was brought for a partition, 
and also to set aside a lease, made by the plaintiff to 
a third person of a part of the estate, on the ground 
of fraud ; it was held, that the Bill was multifarious ; 
for the parties, against whom the partition was sought, 
ought not to be involved in any litigation, as to the 
validity of the lease, in which they had not any 
interest.^ 

§ 276. So, where a Bill was brought by a tenant of 
a colliery under a lease and a subsequent agreement, 
for an account under the agreement, against the execu- 
tors of the landlord, and also against his heir, the ten- 
ant having continued to hold under the latter on the 
same terms, after the death of the ancestor; it was 
held, that the Bill was multifarious in joining distinct 
claims, to wit, one against the executors, and one 
against the heir; and on that occasion, it was said by 
the Court, that the cases, where unconnected ))arties 



> Peane r. Hewiu, 7 Him. H. 171. 

■ Whaley v. UawHOii, 'J Srh. A: Iicfr. 3(i7, 37i», 371. See Smry f. 
Johaaon, *2 Younffv & Cull. .'*i^», that a rmirt of F<<)iiity in iiiakint; par- 
Ulion will have ro^anl Ui th(* Hiili-intorcsts acquired under unc t<Mi:Ltit ni 
eomnMMi bj dutiuct purchases trtim him. 



302 EQUITY PLEADINGS. [cH. V. 

are allowed to be joined in a suit are, when there is 
one common interest among them all centreing in the 
point in issue in the cause.^ 

^ 277. For the same reason, an author cannot file a 
joint Bill against several booksellers, for selling the 
same spurious editon of his work ; for there is no privity 
between them ; and his right against each of them is 
not joint, but is perfectly distinct.* 

^ 278. It is true, that in this last case the author 
has a general right, which he asserts against all per- 
sons whatever, who may violate that right ; and, there- 
fore, it may seem at first view, that it would be proper 
to join all of them, although not in privity with each 
other, upon the same ground, on which, in the case of 
a several fishery, upon a Bill of peace, persons claim- 
ing by distinct titles, not in privity with each other, 
may be joined. Perhaps, the true distinction between 
the cases (if there be any substantial one), is, that in 
the case of the fishery, the right asserted is purely 
local, and limited to a few persons, who have a com- 
mon interest against the right set up ; and that com- 
mon interest centres in the point at issue in the cause. 
But in the case of a copy-right, the claim is absolutely 
against the whole community; and it is not fit, in such 



1 Ward V. Duke of Northumberland, 2 Ansl. 469, 477; Cooper, Eq. 
PI. 183. See also Brinckerhoif v. Brown, 6 John. Ch. R. 139; Fellows 
V. Fellows, 4 Cowen, R. 682. The cases here referred to are incladed in 
the class, where a right of fishery is claimed against many persons ; or a 
right of common by or against many persons ; or a right to duties against 
many persons. See Ante, § 121, 124, 125 ; Cooper, £q. PI. 40, 41, 184 ; 
2 Mont, Eq. PI. 94, note (A. L.). See Boyd v, Hoyt, 5 Paige, R. 65, 
which seems to have proceeded mainly on local law, and local statutes ; 
and Brinckerhoif V. Brown, 6 John. Ch. R. 139, and Fellows v. Fellows, 
4 Cowen, R. 682, where the subject was much discussed. 

2 Dilly V. Doig, 2 Ves. jr. 486 : Cooper, Eq. Pi. 182, 183 ; Brincker- 
hoffv. Brown, 6 John. Ch. R. 155. 



CH. v.] GENERAL FRAME OF BILLS. 303 

a case, that the public should be represented, or l)ouiid 
by a suit, in which a few only are parties.* 

1 It is not very easy upon general principles to reconcile the cases on 
this subject. In the case of the Mayor of York t. Pilkington, 1 Atk. 
2fl3, in the case of the several fishery, already cited (Ante, § !«•>), I^>rd 
Hardwicke at first held, that the defendants could not be joined in the 
Bill, because there was no privity, and they held by distinct titles ; and, 
therefore, they were so many distinct trespassers uiHin the several fishery. 
But he afterwards chan^red his opinion, upon the ground, as it should 
seem, that to prevent multiplicity of suits, Bills of peace had been allowed 
to be broupht, where there was a general right claimed by the phiintitf, 
and yet there was no privity between the jdaintitrs and the defendants, nor 
any general right on the part of the defendants; and many more might be 
concerned than those before the Court. Iiord Eldon, in W^eale v. Mid- 
dlesex Water Works (-o., 1 Jac. & Walk. 3fi0, already cited (Ante, 
$ 1^, note), considered the decision to have held, that where the plain- 
tiff stated an exclusive right, it signified nothing, what particular ri^'hts 
might be set up against him. lie added, that it had been long settled, 
that if any person has a common right against a great many of the King*s 
subjects, a Court of F«<iuity will jiermit him to file a Hill against some of 
them, taking care to bring so many persons before the (..ourt, that tlieir 
interests may be such, as to lead to a fair and honest support of the pub- 
lie interest. This language S4.'euis very applicable to the claim of a coity- 
right against many violators. On the other hand, in Hilton v. Lord 
Scarborough, 4 Viii. Abridg. 125, pi. 35; S. C. 2 Vst\. Abridff. 171, I)., 
liord Macclesfield held, that a Hill to be quieted in the possession of an 
ancient ferry, used with a rope, over the River Ware, brought again.st 
twenty dcfendantN. who had rut the ro|)e (probably at diflferent times), did 
not lie : for. he s:iid, that the plaintiff might have trespass for cutting the 
lope, and a ferry is in thi: nature of a public highway ; and a Hill does not 
lie to be quieted in the jiosfU'SHion of a highway. That would Im' to en- 
join all the j»eople rtf thi' whole kingdom. Mitf. Kt\. Pi. by Jeremy, MR; 
3 Story on F^|. Jurisp. >J h.'iM. Tliiti ease would seem to point t(» a dis- 
tinction betw<M?n a public rii^ht, and a |irivate riirht asserted by the defend- 
ants, and also b<:tween a claim of the phiiiititl' in derogation of a puldic 
right, and one merely in deroi;:ition id' privati> or loeal rights. Hut the 
ease of Mayor of I«(»iidon r. I'erkuiH, t Bio I'arl. CaseH, IS**; S. ('. 3 
Bro. P. C. *iO»J, ToiMlin*N edit., dois not N-em to have recognized the dis- 
tinction. The opinion ol J^iird I«ou^hhorouuh, in Dilly v. Doil', 2 \ en. 
jr. 4h6, ia rery imperlVrily and obsi-urely given ; and the laniruage imput- 
ed to him seems o|M'n to ini»repres«'nt:iiion. He said ; ** The riiiht :Lgrun>t 
Ihc diflt-rent iKMikbeUers is not joint; but perfteily diMinct : thrie im mi 
privity. ■• •• In the c:iw' eiti d (The Mayor of York V. Pilkin;:ton), the 
Bill mas tu prevent multiplieiiy of suits. One geneial right wa^ liable to 
invaaion by all the woild. .So, a Hill to establish the custom uf a mill. 



304 EQUITY PLEADINGS. [cH. V. 

§ 278, a. On the other hand, there may be cases, in 
which multifarious matters of distinct natures may be 
involved in the Bill ; and yet, from the objects of the 
Bill, the objection of multifariousness, as to a particular 
defendant, ought not to prevail. Thus, for example, if 
a person before marriage should settle a fund on his 
wife for life, and after her death on the children of the 
marriage, and the trustees were, after the wife's death, 
authorized to apply the interest thereof to the mainte- 
nance of the children ; and after the marriage he should 
settle another fimd in other trustees for similar pur- 
poses; and afterwards he should by his will make a 
part of the trustees in both deeds trustees upon certain 
trusts for the benefit of his children, and should ap- 
point them executors of his will and guardians of his 
children in conjunction with -his wife ; if, after his 
death, a Bill should be filed by the wife and children 
against all the trustees in the deed, for an account and 
execution of the trusts, although, at first view, it might 
seem open to the objection of multifariousness, yet, 
inasmuch as all the plaintiffs have a common interest 
in the execution of all the trusts, and there cannot be 
a due execution of some of the trusts, without involv- 
ing the consideration of all the trusts arising under the 
deed and the will, the Court would not suffer the 



They stand upon a distinct groand. I do not remember any case upon 
patent rights, in which a number of people have been brought before the 
Court as parties, acting all separately upon distinct grounds." Now, the 
case before his Lordship was one of a general right, liable to invasion by 
all the world, and the Bill would prevent a multiplicity of suits. I cannot 
but suspect an error in the Reporter, and that his Lordship meant to make 
a distinction between such rights, as the right of the plaintiff of a uni- 
versal nature, against all the world, and open to invasion by all, and a 
mere private right, such as a right to a private several fishery, or a private 
right of custom to a mill ; thus taking the very distinction in 3 Eq. Abridg. 
171. See Post, § 530-540. 



CH. v.] GENERAL FRAME OF BILLS. 305 

objection to prevail.^ So, if the Bill should con- 
tain several matters, all of which may come into 

1 Attorney-General v. Poulo, 4 Mylne & Craif^, 17, 31 ; ('aniph<'ll v. 
Mackay, 7 Sim. R. CyiiA ; S. C. on Appeal, 1 Mylne & Crai^r, m'S. in 
delivering his judfrmcnt in \\m last case, the circumstancps of which are 
but imperfectly stated in the text, I^ord Tottenham said ; ** Tht; first 
obaervatioD that occnrs is, that although the defendants are not ail trus- 
tees of the same deeds, the suit seeks some relief a^aiiiist all of them, and 
that there is a common interest in all the plaintitfK under all the instru- 
ments. The prtipositi(»n, contended for on behalf of the demurrin^r par- 
ties, is, that, as a (r('nf*riil rule, — and the rule is 8up|Misefl to Im> nui»- 
ported by the dicta of Sir John Leach, in Salvid^je v. Hyde, 5 iM:uld. 
138, — it never can he |)erniitiod, that dititinct matters should he united in 
the ssme record. The pni)Mmition, of counn'. if carried to its full extent, 
would |;o to prevent the uniting w^veral instruments in one IJill, although 
the same parties were liable in respect of eai'h, and the same parties 
were interested in the proi>t'rty, which was the subject of eaeb. So, that 
if, for instance, a father executed three deeds, all vesting proiM'rty in the 
same trustees, and upon similar trusts for the benefit (»f his children, 
although the instruments^ and the parties beneficial ly interested nndiT all 
of them were the sanifs it wouhl be neecN»ary to have as iiiany suitn, as 
there were instruments. That is a pro|Kisition, to which 1 do not asKeiit. 
It would, indeed, Ihi extremely mischi«.'vous, if such a rule were ehtab- 
lisbed in point of law. N«) pobsible advantage could In> guiiird by it ; 
and it would lead to a iniihi plication of suits in caM?s, where it eould 
answer no purpose to have the subject-i natter of tht* contect split up into 
a variety of separate Hills. To lay do\»u any rule, applicable univer»ully, 
or to say, what constitutes multifariousnchs, as an aluitract propoMtiiin, 
is, upon the authorities, utterly ini|>«>»sible. The cases u|Hjn the siibjret 
are estreoiely various; and the Court, in deciding them, seems to have 
considered, what was i*onvenient in particular circumstances, rather than 
to havo attempted to lay down any absolute rule. The langua^r of 
Sir John Ijeach, in Salvid^^e v. Hydf, is of coursi^ to In* understood with 
reference to the panic ubir e:ihe brfore him ; and, conhidered in that 
point of view, it was perfectly r<irreet, althou<.'h, stated :is a genera] 
proposition, it would run counter to a numrrous class of c:ises. 'J'hc only 
way of reconcilini; the authorities U|ion the subject is, by ad\iTtintr 
to the fact, thai, although the iNioks siM^ak generally of demurnTH fur 
multifarinusncHfl. v«-t in truth surh fleiiiurrers may be divided into two 
distinct kinds. Freijuently the objuction nused, although termed multifa- 
riousness, is, in fact, more propi'rly mi>joiiider; that is to say, the rasra 
or claims, united in the Hill, are of so ditferent a character, that the (^lurt 
will not permit them to be htigati-d in cme record. It may lie, that the 
plaintifla and defendants are parties to the whole of the traiihai -turns, 
which form the subjc^ct uf the suit; and, nevertheless, those trannaiMions 

I. PL. 39 



306 EQUITY PLEADINGS. [CH. V. 

consideration (as, for example, on taking an account), 
as prayed for, although relief may ultimately be given 



may be so dissimilar, that the Court will not allow them to be joined 
together, but will require distinct records. But, what is more familiarlj 
understood by the term multifariousness, as applied to a Bill, is, where a 
party is able to say he is brought as a defendant upon a record, with a 
large portion of which, and of the case made by which, he has no con- 
nection whatever. The form of demurrers for multifariousness strongly 
illustrates this distinction, at least as it used to be understood; for the old 
form of the demurrers, upon the last mentioned ground, went on to state 
the evil of uniting distinct matters in one record, whereby parties were 
put to great and useless expense, an objection which has no application 
in a case of misjoinder. The distinction b clearly taken in a case which 
has been very much relied upon, but which by no means bears out the 
proposition it was cited to support, — the case of Ward v. The Duke of 
Northumberland, 2 Anst. 469. In that case the plaintiff had been tenaot 
of a colliery under the preceding Duke of Northumberland, and contin- 
ued also to be tenant under his son and successor, the then Duke ; and 
he filed a Bill against the then Duke and Lord Beverley, who were the 
executors of their father, seeking relief against them in respect of trans- 
actions, part of which took place in the lifetime of the former Duke, and 
part, between the plaintiff and the then Duke, af\er his father*s decease. 
To this Bill the defendants put in separate demurrers ; and the forms of 
the two demurrers, which were very different, clearly illustrate the dis- 
tinction I have adverted to. The Duke could not say, that there was any 
portion of the Bill, with which he was not necessarily connected ; because 
he was interested in one part of it as owner of the mine, in the other, as 
representing his father. But his defence was, that it was improper to 
join in one record a case against him as representative of his father, and 
a case against him arising out of transactions in which he was person- 
ally concerned. The form of his demurrer was, that there was an im- 
proper joinder of the subject-matters of the suit. Lord Beverley's de- 
murrer, again, was totally different : it was in the usual form of a demur- 
rer for multifariousness, and proceeded on the ground, that, by including 
transactions, which occurred between the plaintiff and the other defend- 
ant, with transactions between the plaintiff and the late Duke (with the 
latter of which only Lord Beverley could have any concern), the Bill 
was drawn to an unnecessary length, and the demurring party exposed 
to improper and useless expense. Both demurrers were allowed, and 
both, it may be said, in a sense, were allowed for multifariousness ; but it 
is obvious, that the real objection was very different in the two cases. In 
Harrison v. Hogg, 2 Ves. jr. 323, which was also more properly a case 
of misjoinder, the plaintiff endeavoured to unite in one record a demand, 
in which all the plaintiffs jointly had an interest, with a demand in which 
only one of them had an interest ; and the demurrer was allowed upon 



CH. v.] GENERAL FRAME OF BILLS. 307 

in respect to some of them only, yet the Bill will not 
be deemed multifarious.^ 



the ground, that the subject-matters were such as, in the opinion of the 
Court, ought Qot, according to the rules of pleading, to be included in 
one suit. In Saxton v. Davis, 18 Ves. 72, the suit prayed an account 
agmiost the representatives of a hank rupt*s assignees, and against Davis, a 
pefBon, who claimed through those asHignecs, and also against a person, 
who had been his assignee under the Insolvent Debtors* Act ; and there 
alto the Bill was held to be bad for multifariousness. One of the cases, 
which (like that of Lord Beverley in Ward v. Uie Duke of Northumber- 
land), applies to the situation of a party, brought before the Court as a 
defendant on the record, whore he has an intcreM in a iH>rtion only of the 
subject-inacter, is Salvidgc v. Hyde, 5 Madd. 138, in which the demur- 
rer, though overruled by the Vice-Chancellor, was aAurwards allowrd by 
Lord Eldun on appeal, Jac. 141. That was a Bill to administer a tes- 
tator a estate, and to set aside a sale miide of a part of it by the executor 
to a purchaser. Sir John Leach *s judgment proceeded u|>on the princi- 
ple, that as the primary object of tlic suit was the administrati<in of the 
anate, and the estate could not be eflfectually administered without ascer- 
taining, whether the sale was to stand or be set aside, the punrhasor was 
properly made a party on the record, with a view to the decision of that 
question. When the demurrer came before Lord Kidou on appeal, his 
Lordship did nut consider that circumstance a suflicient ground of ex- 
ception to the general rule ; and he held, that the defendant, chiiniing as 
a purchaser from the executor, had a per for ily distinct case, and had a 
right lo have that case discussed and derided by iiselt', without being 
mixed up in a suit for the general administration of the estate. What 
would be required in ordt>r to support the defendants' prnjKisition, 
woiild be some case in which, there being a common interest in the 
plaintifb, and the defendants representing and being interested in all the 
diflerent questions raised on the record, and the suit having a common 
object, a demurrer fur multifariousnr^s had Ijcen successful. No c:iso 
haa been produced to show, that the Court will not iiermit such a suit to 
be instituted. But, in theciMirse of the argunn'nt, cases were n'Tt/rn^d to, 
which prove, when examined, that lUc C<iurt has not gone that length, and 
that il has always exercised a discretion in drterniininc, wht^iher the 
anbject-matters of the suit are properly joined or ntit. It is not very easy, 
d pfion, to say exactly, what is or ought to lie the hue n'gulatini: the 
eoune of pleading ujiun thin |M)int. .\11 that can lie done is, in t-uch par- 
ticular case as it arisi's, to ronnidiT, whetht-r it eum«-s nearer the oih* class 
of decisions or the other. A rernarable lUustratiim of the distinction, 
taken by the <'ourt, is to In« found in The .\tturney-(ieneral r. Tin* Mer- 
chant Tailors* Company, 5 Siin. 'Jnh, and 1 Mylne & Keen, l*^'.*. That 

1 Addison r. Walker, 4 Vuunge 6l Cull. 441. 



308 EQUITY PLEADINGS. [CH. T. 

^ 279. All the foregoing are cases, where the objec- 
tion of multifariousness arises on account of various de- 



was an iDformation praying the due administration of a number of char- 
itable trusts, all of which had a common object ; that is to say, although 
they varied in their terms, and, to a certain degree, in their object, there 
was still a great similarity ; the funds, in all of them, being applicable to 
loans for the benefit of freemen of the corporation of Merchant Tailors. 
In one of those trusts, however, another corporation had such an interest 
as, in the opinion of the appellate Court, rendered that other corporation 
a necessary party to the suit, before the particular trust in which it was 
concerned could be carried into execution ; and it was there contended, 
that those charities could not be united in one information, because they 
were of different foundations, and depended upon different grants, and 
that it was therefore a misjoinder, or, according to the language of the 
demurrer, multifarious, to unite so many different objects in one suit. 
The Court, however, did not acquiesce in that reasoning ; but held, that 
in so far as the defendants had a common responsibility, and the trusts 
had a common object, the charities were all properly joined : but there 
being one particular charity, in which a third party had such an mtereet, 
as to make him a necessary party, if the trusts of it were to be adminis- 
tered, the Court considered, that the administration of that charity could 
not be comprised in the same information with the rest; not on the 
ground of a misjoinder, but according to the ordinary form of the objec- 
tion, because the party, so made a defendant on account of his interest in 
that single charity, had no connection with the other charities, and was 
involved by the ^uit in complicated and expensive proceedings, although 
he was concefned with a small part only of the subject-matter in litiga- 
tion. The decision of the present Vice-Chancellor, in The Attorney- 
General V. The Goldsmiths' Company, 5 Sim. 670, went upon the same 
principle, though it came to a different conclusion ; for his Honor, in 
giving judgment, plainly showed, that he considered the rule, which I 
before staled to be extracted from The Attorney-General v. The Merchant 
Tailots' Company, as the rule to be adopted in practice. In that case, 
there were several distinct defendants and several distinct charities. The 
information stated the trusts of one of the charities, and then alleged the 
existence of several others for similar purposes, but without setting out 
or specifying the original endowments ; and his Honor held, that what 
the information so alleged was not sufficient to show to the Court, that 
the other trusts were of so similar a nature, as to justify their being united 
in one record. That such was the view on which the Court proceeded, 
is manifest from the language of his Honor's judgment. ' If,' observes 
his Honor in that case, ' it had been so alleged in the information as to 
show, that the character of all these other bequests was homogeneous, 
although there might be minute dififerences between them, they might all 
have been comprised in the same information.' The result of the prind- 



CH. v.] GENERAL FRAME OF BILLS. 309 

fendants bcinj; improperly joined in a suit upon distinct 
and independent matters. But the like principle 
equally applies to an improper joinder of plain titFs, who 
claim no common interest, but assert distinct and sev- 
eral claims against one and the same defendant.^ 



pies, to be extracted from those two eases, nc<;ative8 the proposition, that 
where there is a coininon liiibiiity and a eominon interest, the coinmun 
liability in drft*ndaiit8 and the eomnion interest in plainiiffs, difTercnt 
(grounds of pn)p('rty cannot be uniunl in one and the same reeord. On 
the contrary, b«ith those cases are consistent with the d<ictrinc, that they 
may bo so united. The case of Turner r. Hobinson, I Sim. &. Stu. 313, 
which was also referred to in the argument, was a very strong ease ; and 
I believe the present Vice-C'haneeilor has said of it, that he could nut 
acquiesce in the pnipriety of the jiid^^ment. Nevertheless, it shows the 
opinion of the learned Jud[?c, Mho decided it, and proves, how little dis- 
posed he was to entertain the object iun of multifariousness, where the 
justice of the case did not absolutely require it. The case of Knye v. 
Moore« 1 Sim. & Stu. 01, was a very remarkable instance of the (/uurt 
deciding a^rainst an objection, which mure ]>roperIy would Iw a misjoin- 
der : and it is not. therefore, in strictness, to hv classed with other cases, 
which I have already mentioned. There, a mother, who claimed an an- 
nuity for herself, joiut'd her ebililren with her as co-fdaintilHt in a Bill, 
the object of \iihieli was to establish two distinct claims, arising? under 
sr]>arate instrument*^ ; the mother elaiminii an annuity under one, and 
the mother and children claiming the benefit of a settlemt*nt under the 
other; and that was held not to be multifarious. In Kensinr^ton v. White, 
3 Price, Ifil, a 111 II was filed by seventy -two underwriters to restrain 
several actions on difl'erent policies etVected ufMrn ditfen-nt ships. The 
defendania, indeed, had a common intenrst in all, because thf>y were the 
owners of the shi|>s, and plaintitrs in all the actions ; but hero were 
■eventy-twu individuals, all not only li:ible to si^pardte actions, but actually 
defendants in .oepanite action^, niiiii'd totrether against the parties, who 
were plaintiffs in all the aetioiiM, for the purpt»si* of obtainini;, by one 
Dill, a diMTovery in aid of the di I'ener against all the actions ; and that 
was held in thrCmirt of Kxebeqiier not to In' multifarious. It is not, 
howerer, nPC(?HHary for th«' present piir|ttise, to carry the doctrine to any 
thing like that extent. This is simply the eiL-ti* of three iiistrunienis, 
under each uf which the plaiiitilFs are iMitiiled to a fund, and tin* ilefeml- 
anU, who demur, are all of them aecouniinir partifM ; the only peculiarity 
in the rase b<'iii(r. that the defendantN are not nil partit s to all the instrii- 
menla in res)H*ct of uhieh the relief in prayed." 1 .Myliie *V ''rait'. K. 
BI7 - 625. Scf I'lwt . ^ i»-:« - -J^ I , fl. .Wi). :i3H - Til 1 . Sijt- aUi Ltimwleii 
V. Fraser, 7 Sim. K. .Vi.'i ; S. t'. 1 Mylne A: Traij:. ;>li. 

* Kseler College v. Rutland, Madd. U. il4 ; Yeatun v. Lenux, b Pe- 



310 EQUITT PLEADINGS. [CH. V. 

Thus, for example, if two plaintiffs should, in one Bill, 
bring a joint demand, and a several demand, against 
the same defendant, it would be demurrable on the 
ground of multifariousness.^ So, if two plaintiffs, 
claiming under distinct promissory notes given to them 
severally, should file a joint Bill on account thereof. 
So, if two plaintiffs, who have given distinct and sev- 
eral promissory notes to the defendants, should file a 
joint Bill to recover back money paid by them several- 
ly to the defendant on those notes, it would be de- 
murrable ; for the several contracts have no connection 
with each other.^ So, if A,, B., and C, being the 
next of kin, and D., being the sole heir at law, should 
unite in one suit against an administrator for an ac- 
count of the personal and real estate of the intestate, 
the Bill would be multifarious; for the claims of the 
next of kin to an account of the personal estate, are 
wholly distinct from those of the heir to the real es- 
tate.'* So, if several distinct holders of scrip or shares 
in a loan should sue on behalf of themselves and all 
others, to have their subscriptions refunded, the Bill 
would be multifarious ; for their interests and demands 
are distinct and several.^ 

ters, R. 123 ; Ante, ^ 232, 236, 237 ; Post, § 509, 530, 541, 544. As to 
misjoinder of plaintifTs in a Bill of discovery in aid of a defence to an ac- 
tion at law, see Post, § 569. 

1 Harrison v. Hogg, 2 Yes. jr. 323, 328 ; Cooper, Eq. PI. 183 ; Boyd 
V. Hoyt, 5 Paige, R. 65. 

8 Yeaton v. Lenox, 8 Peters, R. 128. 

3 Maud V. Acklora, 2 Sim. R. 331 ; Dunn v. Dunn, 2 Sim. R. 329. 
There is an apparently anomalous decision in Turner v. Robinson, 1 Sim. 
& Stu. 313 ; S. C. 6 Madd. 94. But it was disapproved of in a later case 
cited in Dunn v. Dunn, 2 Sim. R. 329, note (a). In Lord Foley v. Car- 
Ion, 1 Younge, R. 373, an objection for multifariousness, in joining several 
defendants, was overruled. But it does not appear upon what precise 
ground this was done, although probably from there being in effect a joint 
charge of fraud against all the defendants. 

4 Jones V. Garcia del Rio, 1 Turn. & Russ. 297 ; Ante, § 236, 837 ; 
Post, ^ 509, 540, 541, 544. 



CH. v.] GENERAL FRAME OF BILLS. 311 

^ 279, a. But the objection of misjoinder docs not 
apply, where all the parties plaintiffs have an inter- 
est in the suit, although it is not a coextensive in- 
terest. Thus, a tenant for life and a remainder- 
man may join as plaintiffs in the same suit respecting 
their interest in the estate. So, a widow and her 
children, who have successive interests in the same 
trust, may unite as plaintilTs in one Bill to enforce the 
trust, where there has been a breach thereof, as well 
against a stranger, as against the trustee.^ 

^ 279, b. It has also t)een said, that a i)erson may 
maintain a suit, as sole plaintiff, although uniting in 
himself several characters, having distinct conflicting 
rights in the subject-matter of the suit. But the Court 
in a suit so constituted will not decide u))on the con- 
flicting rights vested in the plaintiff; but will only make 
provision by its decree for the protection of the de- 
fendants from any prejudice, which may arise from the 
peculiar constitution of the suit.^ 

^ 280. The same objection of misjoinder or multi- 
fariousness equally lies, where two distinct matters are 
united in the s;mie Bill, brought by a single plaintiff 
against the same defendant.^ Thus, for example, 
where a Bill was brought for a discovery, and also for 
a commission to examine witnesses abroad, in aid of a 
defence at law to two s(*parate actions, for two sep- 
arate and distinct libds, lirouglit by the same plaintiff 
against the same defendant, and the Bill sought to 
have the examinations of the witnesstrs taken under 
one commission, and not distinct commissions to is- 
sue as to each action ; the Bill was on dennirrer 



> BuckcridfTc r. (:i;i>Mr, 1 i'r.iMi & Phill. I'JO. 
* Bleaae r. Uurfrh, *2 Uiavan, U. 2*J1. 

3 This subject will bu I'uuittl iiiufl' fully examined hervafiur. Sen Punt, 
$530-540. 



812 EQUITY PLEADINGS. [CH, V. 

heW multifarious ; for it might retard or prejudice the 
proceedings of the plaintiff at law in one action, by 
requiring him to wait until the depositions for both 
were returned, and the defendant was prepared for 
his defence and trial in both,^ Besides ; the depositions 
taken under the commission, must be published and 
used at the trial, which should first take place, although 
it might happen, that the witnesses in- the second ac- 
tion might come within the jurisdiction, before the trial 
of the latter action ; and thus the premature publi- 
cation of the testimony, in opposition to the principles 
and practice, upon which Courts of Equity act in 
such cases, might be dangerous to truth and justice 
at the second trial.^ But the broader and more gen- 
eral ground is, the inconvenience of mixing up distinct 
matters, which may require very different proceedings 
or decrees by the Court, and embarrass the defendant 
in Equity in his proper defence against each.' On 
this account, it would have made no difference in the 
case, if the plaintiff had prayed for two distinct com- 
missions in the Bill ; for, not only would such a suit 
be an entire novelty in the Court, but injustice would 
be done to the defendant in Equity by compelling him 
to wait for his costs upon the first commission, until 
the return of the second/ 

^281. For the like reason, where a Bill impeached 
a will on account of the alleged incapacity of the tes- 
tator, and sought to take testimony de bene esse in a 
suit already brought, and also to perpetuate the testi- 
mony of witnesses, on a demurrer, the Court held the 



^ Shackell v. Mac^^ley, 2 Sim. & Stu. 79. 

2 Ibid. 

3 See Attorney-General v. St. John's College, 7 Sim. R. 241 ; Post, 
§ 532, note. 

* Shackell v. Maeauley, 2 Sim. & Stu. 79. 



CH. v.] GENERAL FRAME OF BILLS. 313 

Bill multifarious ; for the decretal order for the publi- 
cation of the testimony would be very diflerent on a 
commission de bene esse, from what it would be on a 
commission to perpetuate the testimony.^ 

^ 281 1 a. So, where a testator gave an annuity to A., 
and certain leasehold property to his children, with a 
direction for their renewal of the leases, and A. l)rought 
a Bill for his annuity, and also as next friend of the 
children to have the leases renewed, it was held, that 
thus uniting these distinct interests w^as impro|)er, and 
the Bill was demurrable for misjoinder thereof.^ 80, 
a Bill in the form of an equitable ejectment and of a 
Bill to redeem, brought against another person, will lie 
demurrable as multifarious.* 

^ 282. So, where an information against a corpora- 
tion alleged, that the corporation was sensed of certain 
real estates for purposes of public utility, and of other 
real estates in trust for private charity, and charged a 
misapplication and abuse of both funds, the (^ourt held 
the Bill multifarious ; for the case of the one fund was 
wholly distinct from the other, as to rights and ob- 
jects.* The same objection was held to be well taken 
to a Bill, which mixed up various donations given for 
▼arious purposes, alleged to be misapplied by the; same 
defendants.^ 



^ Dew V. ClarkCf 1 Sim. & Stu. lOrt; 2 Stury on Ftpiity Jiirisp. 
4 1510. 

» AndoTMD V. Wallis. 1 Yoiinyro K Coll. K. 3.V> ; S. C. niillii>, <'|i. 
R. 209. 

3 Plumbev. Plumlio, I Vonn(?o & Cull. 315. 

^ Altonicy-C2rnrnl v. Carmarthen, Cooper, H. 31 ; JohnMin r. John- 
•OQ, 6 John. Ch. K. iri3. 

* Attornry-Crnrral r. (Solilhiniths' Company, 2 Sim. fiTO. It its ^M hy 
liOid Rpdesdale, that, ah tht> dfrniilantM may comhinc tocrrthrr to (Irfraiid 
the plaintifl* of hiM rj|;hts, and »iirh a combination iH UHually ohar^n-i! in the 
Bill, it haa been hehl. that the di'ftMidant muHt so far an^iwcr ih(* Hill, aa 
to deny combination. Mitf. Va\. PI. by Jeremy, IHl. The cai»e of J*o\v- 

EQ. PL. \0 



314 EQUITY PLEADINGS. [CH. V. 

^ 283, However ; although a Bill is ordinarily open 
to objection for multifariousness, which contains two 
distinct subject-matters, wholly disconnected with each 
other; yet if one of them be clearly without the juris- 
diction of a Court of Equity for redress, it seems, that 
the Court will treat the Bill, as if it were single, and 
proceed with the other matter, over which it has juris- 
diction, as if it constituted the sole object of the Bill.* 
And even if there be a misjoinder of a party plaintiff, 
and the objection is not taken until the hearing, the 
Court will sometimes permit a decree to be made at 
' the hearing, when it appears that notwithstanding the 
misjoinder, justice can be done to all parties.* So, if 
there be a misjoinder of parties as co-plaintifis by mere 
want of interest, the objection can in general be taken 
advantage of only by plea or demurrer.* But, if the 
plaintiffs have conflicting interests, then the objecti6n 
may be taken at the hearing.^ 

§ 284. A Bill is not to be treated as multifarious, 
because it joins two good causes of complaint, grow- 

ell V. Arderne, 1 Vera. R. 416, fully sapports this statement. But the 
proposition, so far as it applies to the general charge of combination, is 
now overruled ; and it is maintainable only, where a special combination is 
charged. Ibid, note (b) ; Cooper, Eq. PI. 183. See also Mr. Raithby*8 
note to Powell ». Arderae, 1 Vern. 416, and Lansdowne v. Elderton, 8 
Ves. 526, 527; Oliver v. Haywood, 1 Anst. R. 82; Brookes r. Lord 
Whitworth, 1 Madd. R. 86. 

1 Knye v. Moore, 1 Sim. & Stu. 61 ; Dew v. Clarke, 1 Sim. & Stu. 108 ; 
Varick v. Attorney-General, 5 Paige, R. 137, 160; Pringle p. Cooks, 3 
Younge & Coll. 666 ; Ante, ^ 273. The proper course for the defendant 
in such a case is said to be, to answer to the proper matter within the 
jurisdiction of the Court, and to demur to the other for want of Equity ; 
or the defendant might answer to both, and make the exception, as to 
the want of Equity in the latter, at the hearing. Varick v. Smith, 6 
Paige, R. 160; Ante, § 278, a; Post, § 644. 

8 Lambert r. Hutchinson, 1 Beavan, R. 277, 286 ; Ante, § 237; Poet, 
^ 530, 541, 544. 

3 Davies v, Quarterman, 4 Younge & Coll. 267. 
* Ibid. 



CH. v.] GENERAL FRAME OF BILLS. 315 

ing out of the same transaction, where all the defend- 
ants are interested in the same claim of right, and 
where the relief asked for in relation to each is of 
the same general character.^ Neither will a Bill be 
deemed multifarious, where it states a right to an ac- 
count from A. and B., against whom it has one reme- 
dy, which it seeks to enforce, and also claims a lien 
against A. for what is due, and seeks that separate 
remedy against him ; for the plaintiff' may well in such 
a Bill entitle himself to each.^ Indeed, the objection 
of multifariousness, and the circumstances under which 
it will be allowed to prevail, or not, is in many cases, 
as we shall hereafter see, a matter of discretion, and 
DO general rule can be laid down on the subject.^ 

^ 284, a. In respect to the manner of taking the 
objection of multifariousness, it will more fully come 
under consideration in a subsequent part of this work.^ 
But it may be proper here to state, that the objection is 
usually taken by way of demurrer ; and if not so taken, 
and the cause goes on to a hearing, the objection will 
not then always be fatal to the suit. Indeed, strictly 
speaking, the objection is then waived by the parties ; 
although the Court propria jure may insist upon it.^ 
Where a joint claim against two defendants is improp- 
erly Joined with a separate claim against one of them, 
both or either may demur to the Bill for multifarious- 
ness ; and it will be held bad as to the party de- 
murring.* 

^ 285. Another exception to the general doctrine 



* Varick v. Smith, 5 Paipo, R. lf»0 ; Ante, § Ifll, note, 271, «. 278, a, 
' Manners V. Rowley, 10 Sim. 470. 

> IIogfFan V. Cutta, 1 Craif; & Phill. 204; Poet, $ 201, 530-540. 

« Poat, 4 530 - 510. 

A Greenwood r. Churchill, 1 Mylnc & Keen, 5-16. 

* Boyd V. Huyt, 5 Paige, K. 65. 



316 EQUITY PLEADINGS. [CH. V. 

respecting multifariousness and misjoinder, which has 
already been alluded to, is, where the parties (either 
plaintiffs or defendants) have one common interest 
touching the matter of the Bill, although they claim 
under distinct titles, and have independent interests.^ 
The cases respecting rights of common, where all the 
commoners may join, or one may sue or be sued for all ; 
of parishioners to establish a general modus ; or of a 
parson to establish a general right of tithes against 
parishioners ; and others of a like nature, already stated 
under another head, fully exemplify the doctrine ; for 
in all of them there is a common interest centreing in 
the point in issue in the cause,^ 

^ 285, a. The same principle has been held to ap- 
ply, where the plaintiffs claim real or personal estate 
under one title, and bring their suit against various 
defendants, who claim the same estate under distinct 
and separate sales of different parcels thereof to them 
separately, where the gravamen of fraud or wrong in 
the sales is the same, and equally applies to all. As, for 
example, where the plaintiffs claimed under a will made 
in 1813, alleging that the same had been suppressed by 
the executors, and a prior will admitted by the execu- 
tors to probate by fraud, and that sales of the property 
were made to different purchasers under the prior will, 
and that the purchasers (who, as well as the executors, . 
were made parties to the Bill) were cognizant of the 
fraud ; it was held, on demurrer, that the Bill was not 
multifarious in joining all the purchasers and the execu- 
tors, but was maintainable against them all.' 

1 Ante, § 120, 121. 

2 Ante, § 120, 121; Cooper, Eq. PI. 40, 41, 184; Milf. Eq. PI. by 
Jeremy, 170, 182 ; Ward v. Duke of Northumberland, 2 Anst. 469, 477 ; 
Brinkerhoff v. Brown, 6 John. Ch. R. 139. See Fellows v. Fellows, 4 
Cowen, R. 682. 

3 Gaines and wife v. Chew, &c., 2 How. Sup. Ct. R. — ; Post, § 630 
-540. 



CH. v.] GENERAL FRAME OF BILLS. 317 

^ 286. The same principle has been supposed prop- 
erly to justify the joining of several judgment credi- 
tors in one Bill against their common debtor and his 
grantees, to remove impediments to their remedy, creat- 
ed by the fraud of their debtor in conveying his prop- 
erty to several grantees, although they take by sepa- 
rate conveyances, and no joint fraud in any one trans- 
action is charged against them all. In such a case (it 
is said), the fraud equally affects all tlie plaintifls, and 
they may jointly sue ; and all the defendants are impli- 
cated in it in diiTerent degrees and pro|X)rtions, and 
therefore are properly liable to be jointly sued.^ 

' Brinkcrfaoffv. Brown, 6 John. Cli. R. 13iK In BrinkorhufT v. Brown, 

John. Ch. R. 157, Mr. Chnncellor Kent, after an claborati! review 
of tho cases, said ; ^* The principle, to be deduced from xUone eaisos, is, 
thit ft Bill against several [lersons must relate to matters of the same na- 
ture, and having a connection with each other, and in which all the de- 
fendants are more or less concerned, though their ri^^hts in res|H'c't to the 
general subject of the case may be distinct. And when w(> consider, that 
the plaintifls, in the case now before me, are Judgment creditors, bavin;; 
claims against the (>encssce Comjiany perfectly established, and not the 
subject of litigation in tliis Kiiit ; and that the geiirrai riizlit claimed l)y 
the Bill is a due application of the capital of that (*i>mpany to the pay- 
ment of their judgments ; that the subject of the Bill and of the relief, 
and the only matter in litigation is, the fraud charged in the creation, 
management, and disposition of tliat capital ; and in which ebar^'e all tll(^ 
defendants arc implicated, thi>ugh in ditferent degrees and proportions; I 
think wc may safely conclude, that this ca»c fulls within the reach of that 
principle, and that the demurrer cannot be sustained. " In the ease of 
Fellows r. Fellows. I fVmen, Jl. Ti^^'J, the same principle w;is fully car- 
ried out by the Court of Krrors, after a very full discussion. S. V. |>i\ 
V. Briggs, y i*aiire, H. .V.i:»; Sizcr r. .Miller, u Vav^v, R. *\o:>. Sie al.»*o 
B<iyd r. Hoyt. .'j Paige, H. Tm. Thr ca>e nf \aiu\ Folry r. <'arlon, 1 
Yiiunge, R. 373, seems (as already intiinattd) to have proci'.iiird n|ion the 
ground of a joint charge of fraud : but it has a clo?<e rt-.'«i-niM:iii('i' in ibi; 
cases in fi Juhn. Ch. U. l.'il), ami I Cowm. U. H^'J. Wynne r. (':i]]i>nfi,T, 

1 Rubs. R. 20Ii. seems distin!;uisbable fnim that in 1 Youn:ri-, \i. r<7!{, prin- 
cipally on the groumU that there was no joint ehart?e of fraud in all tin* 
holders of tint llills. Without meanini! to question the doctiiiif abnve 
referred to, it mav well In* doubted, \\lieih«>r there are anv KiiL'li'>b 
authorities, which fully bear out the propoMtiiMiN in the r:i*.f*i m fi .Tidin. 
Kh. R. I3'J, and I Cowcn, R. t»^'J, or are ea.Mly reconcilable uiih them. 
Ante, ^ 161, note ; Post, ^ 537 and note, ^ 637. a. 



318 EQUITY PLEADINGS. [CH. V. 

^ 286, a. The same principle has been supposed to 
justify the uniting in one Bill for discovery and relief, or 
for discovery merely, of distinct underwriters, upon the 
same policy or upon different policies, as plaintiffs, 
upon the ground of a common fraud, which vitiated all 
the policies, and furnished a good ground of defence at 
law, as well as a good ground to cancel all the policies, 
if it was fully established in proof ; for, under such 
circumstances (it is said), they have a common in- 
terest.^ 

^ 287. In the next place, a Bill may be olgection- 
able for the opposite fault to that of multifariousness, 
that is to say, for an undue divisibility or splitting up 
of a single cause of action, and thus multiplying sub- 
jects of litigation. Courts of Equity (as we have 
seen) discourage, in various forms, the promotion of 
unreasonable litigation ; and, on this ground, for the 
purpose of preventing a multiplicity of suits, they will 
not permit a Bill to be brought for a part of a matter 
only, where the whole is the proper subject of one 
suit.* Thus, for example, they will not permit a party 
to bring a Bill for a part of one entire account ; but 
will compel him to unite the whole in one suit ; for, 
otherwise, he might split it up into various suits, and 
promote the most oppressive litigation.* Upon a 
ground somewhat analogous, if an ancestor has made 
two mortgages to the same person, the heir will not be 
allowed to redeem one without the other ; for, in such 



1 Kensington v. While, 3 Price, R. 164 ; Mills v. Campbell, 2 Younge 
& Coll. 389, 396, 397. See Ante, § 161 and note, 230, 278 and note ; 
Post, § 537 and note, 537, a. See also Campbell v. Mackay, 1 Myloe & 
Craig, 624,625. 

2 Cooper, Eq. PI. 181, 185; Mitf. Eq. PI. by Jeremy, 183. 

3 Cooper, Eq. PI. 184, 185; Purefoy ». Purefoy, 1 Vern. 29; Mitf. 
Eq. PL by Jeremy, 183. 



CH. v.] GENERAL FRAME OF BILLS. S19 

a case, the Equity of the heir, like that of the ancestor, 
is to redeem the whole, or none.' 

^ 288. In the next place, where the sole foundation 
of the jurisdiction in Equity is the want of a discovery, 
and, as incident thereto, relief is consequent upon that 
discovery, care must be taken so to frame the Bill and 
accompanying affidavit, as to bring it clearly within 
the admitted doctrine and practice of the Court. 
Thus, a Bill, seeking a discovery of deeds or writings, 
sometimes prays relief, founded on the deeds or writ- 
ings, of which the discovery is sought. If the relief 
so prayed be such, as might be obtained at law, if the 
deeds or writings were in the custody of the plain tiff, 
he must annex to his Bill an affidavit, that they are 
not in his custody or ix)wer, and that he knows not, 
where they are, unless they are in the hands of the 
defendant. But a Bill for a discovery merely, or 
which only prays the delivery of deeds or writings, or 
equitable relief, grounded upon them, does not require 
such an affidavit.^ 

^ 289. In the next place, the matters of the Bill 
should be such, as clearly to entitle the party to all the 
discovery, which he seeks in aid of his prayer for relief; 
for, if the discovery is not material, the Bill will, u]X)n 
this point, be oi)en to demurrer. Thus, where a Bill, 
filed by a mortgagor against a mortgagee to redeem, 
sought a discovrTv, whether the mortgagee was a trus- 
tee, a demurrer to the discoverv was allowed ; for. as 
no trust was declared u{X)n the mortgage, it was not 



' Purefoy V. Purrfoy, 1 Vcrn. 21»; Shuttleworth v. I*iyr*»rk, 1 Vrrn. 
945; Margnvo v. Le llookc. "2 Verri. *J07 ; Coleman «. Winrh, 1 P. Will. 
945; Willie v. Lu^fz, *2 VAvn, K. 7.*^. H(); 2 Story on E<]iiity Jimsp. 
{ 1093, note (1); Kx parte Carter, Ambler, K. 733; Ireson v. Denn, 
9 Cox, R. 435 : Jones r. Smith, il Vei. jr. 376. 

• Mitf. Eq. PI. by Jeremy, 54 ; Cooper, E>i PI. 61. 



320 EQUITY PLEADINGS. [CH. V. 

material to the relief prayed, whether there was any 
trust reposed in the mortgagee, or not.^ 

^ 290. In concluding these brief remarks upon 
some of the more important rules, applicable to the 
structure of the common original Bills for relief, it may 
be added, that, in all cases, where the interference of 
a Court of Equity is sought, the plaintiifT should not 
only clearly show his title, and right to demand the 
assistance of the Court in his favor ; but also, that the 
case is one, of which the Court has jurisdiction, and 
to which it ought to apply its remedial justice. If 
this is not done, the suit is fatally defective and the 
Bill must fail.^ 

1 Mitf. Eq. PI. by Jeremy, 192 ; Harvey r. Morris, Rep. Temp. Finch, 
214; 2 Story on Eq. Jurisp. § 1497. 

« See Mitf. Eq. PI. by Jeremy, 110, 125, 133, 141, 164, 165, 163; 
Ante, ^ 10, 241 ; Cooper, Eq. PI. 179; Bedell v. Hoffinan, 2 Paige, R. 
199 ; Barton's Suit in Eq. 45, 46. 



CH. ▼!•] BILLS OF INTERPLEADER. 321 



CHAPTER VI. 

BILLS OF INTERPLEADER AND CERTIORARI. 

^ 291. There arc, however, two other sorts of 
original Bills for relief (as has l)ceii already stated), 
namely. Bills of Interpleader, and Bills of Certiorari, 
upon the structure of which it may l)e proper to say a 
few words. And, first, as to a Bill of Interpleader. 
It is ordinarily exhibited, where two or more persons 
claim the same debt, or duty, or other thing, from the 
plaintiflf, by different or separate interests ; and he, not 
knowing to which of the claimants he oui^ht of right 
to render the same debt, duty, or other thing, fears, 
that he may suffer injury from their conflicting claims, 
and therefore he prays, that they may l>e compelled 
to interplead, and states their several claims, so that the 
Court may adjudir<S to whom the same debt, duty, or 
other thinj; Iniloni^s.* As everv such Bill is founded 



< Milf. Eq. PI. by Jrmny, H, 10, HI ; roo|>er, K.|. PI. 1."»,.'iri; C'raw- 
thny r. Thornton, 7 Sim. R. 301 ; S. (\ 2 Mylnc & ('raijj, l, *JI ; l Kq. 
Abridff. no, I, marfr. ; 2 Story on F«iiuity Jiirisp. § 8(M)-h21 ; 1 Mont. 
Eq. PI. 232. Sec FlaM India Tompany v. (*ampion, 11 Hlitrh, R. 1^1, 
1^; Alkinnon r. Maiiks, 1 Cowm, R. r>*u. In Hoffpart r. f'utt.s, 
1 Craig & Phill. 201, I^>nl r<iitpnham Rriid ; ♦* Tho <!«fiiiition of inlrr- 
pleader is not, an«l ranmit, now, \w liifipiitrH. It iH where tin* plaintiflf 
ny8,l have a fund in my poftHcsHion, in which I claim no personal interest, 
and to which you, the det'endantM, net up cnnflictinj^ claimn; pay mu my 
costs, and I will hrinir the fiiiiil into rniirt, and you nhall contest it t»e- 
twwn yoursrlven. The ease mUMt he one, in which the fund is nintter of 
ciHit^flt between tu o parties, and in which tho htifiation iN-twefii thoAo 
parties will decide all their resi>ective riyhtn with respect to th«* fund." 
See also 2 Story on Vt}. Juri.sp. § J^l?, A, where the opinion of Lonl Tot- 
tenham in (*niwshay v. Thornton. 2 Mylne & Craic, 1 10, is cit«'il at some 
length in the note. Sen al«u) HiL'noId r. Audland, 11 Sim. R. 23, 21 ; 
GIpi V. Daesbury, II Sim. R. 131». 117. \A><; 2 Story on V/\. Juriiip. 

EQ. PL. 11 



• • 



322 EQUITY PLEADINGS. [CH. TI. 

upon the admitted want of interest in the plaintiff, 
' and is, at the same time, susceptible of being used 
collusively to give -an undue advantage to one of the 
contending parties, tw^o things are required as precau- 
tions to prevent any abuse of the proceeding. In the 
• first place, the plaintiff must annex an affidavit, that 
there is no collusion between him and any of the par- 
ties ; in the next place, if there is any money due, he 
must bring it into Court, or, at least, offer to do so by 
his Bill.^ If he does not do so, it is in strictness a 
good ground of demurrer.^ 

^ 292. In the next place, in a Bill of Interpleader, 
it is necessary, that the plaintiff should state his own 
rights, and thereby negative any interest in the thing 
in controversy ; and he should also state the several 
claims of the opposing parties.^ If the Bill does not 
show, that each of the defendants, whom it seeks to 
compel to interplead, claims a right, both of the de- 
fendants may take the objection by demurrer ; one, 
because the Bill shows no claim of right in him ; the 
other, because the Bill, showing no right in the co- 



§ 806, note ; Shaw v. Coster, 8 Paige, R. 339. The subject of inter- 
pleader generally is fully treated in 2 Story on Eq. Jurisp. § 800-825. 

1 Mitf. Eq. PI. by Jeremy, 49, 143 ; Cooper, Eq. PI. 49, 50 ; Barton's 
Suit in Eq. 47, note (1) ; 2 Story on Eq. Jurisp. ^ 809 ; Post, § 297. 

3 Ibid ; Metcalf r. Hervey, 1 Ves. 248 ; Hyde r. Warren, 19 Ves. 
321, 323 ; Dungey w. Angove, 3 Bro. Ch. R. 36. 

3 Mitf. Eq. PI. by Jeremy, 49, 141, 142; 1 Mont. Eq. PI. 232, 233. 
In Dungey r. Angove, 2 Ves. jr. 311, Lord Loughborough is reported to 
have said ; " The Bill" is singular ; for it suggests a case. An interplead- 
ing Bill never does that.'* It is not very clear, what his Lordship meant 
by this statement. In one sense, every Bill of Interpleader must suggest 
a case, that is, it must suggest a case which justifies the interposition of 
the Court. What his Lordship probably meant was, that it never sug- 
gests the whole case of the defendants, or the validity of their respective 
titles, by a full display and comparison of them, calling upon the Court 
to interpose and decide upon such statement of them. See Mohawk & 
Hudson Railroad Company r. Clute, 4 Paige, 384, 391. 



CH. VI.] DILLS OF INTERPLEADER. 323 

defendant, shows no cause of interpleader.^ An ob- 
jection equally fatal will be, that the plaintifl^ shows 
no right to compel the defendants to interplead, what- 
ever rights they may claim.^ 

^ 293. The claims, too, should be specifically set 
forth, so that they may appear to be of the same 
nature and character, and the fit subject of a Bill of 
Interpleader. This position may easily be illustrated 
by stating, that Bills of Interpleader (at least inde- 
pendently of statutable provisions) do not ordinarily 
lie, except in cases of privily of some sort In^twoen all 
the parties ; such as privily of estate, or title, or con- 
tract, and where the claim by all is of the same nature 
and character.^ AVhere the claimants assert their rights 
under adverse titles, and not in privity, and where 
their claims are of diflerent natures, the Bill is wholly 
unmaintainable.^ 'I'hus, if an estate is put up for 
sale at auction, and A. becomes the purchaser, and 
pays his deposit; and then, by order of the same 
owner, it is set up again for sahj, and B. becom(»s the 
purchaser, and pays his de|K)sit ; such a case is not a 
proper case of interpleader, if each demands his de- 
posit from the stakeholder ; for A. and J), do not 
claim in privity, and their de{K)sits are distinct."^ 

^ 2i)4. U|K)n tilt* like ground, a t(Miant, liable to pay 
rent, may file a Bill of Interpleader, when? there are 



' Milf. Ki\. V\. by Jinmy, IV2 ; vJ Siory on Ivjiiity Jiin>p. 4 ^-* i 
Shaw V. ffwtir. H Piiiirr. U. X\\}. 

» Milf. K4\. V\. hy Jrrriiiy, WH, 1 H. 

' 9 Story on Kt\. Jiirifrp. ^ Ht»7 -HvJl. 

< Milf. E«|. IM. hy Jirrniy, 112, IH. notr (r) ; ('.)oiKr. F^j. PI. IH ; 
Ihin^y r. Anjjnvt*. 2 Vrs. jr. 30l ; Smitli v. T:lr^'•■t. tf Aiist. 1(. .W!»; 
Johniion r. Atkiiiwm, 3 Aiisl. R. 7Uh; ('rnwnhay w. Thornton. 7 Sim. H. 
391 ; S. f. 2 Myln«' A: Oai-,', I ; Jew v. WimmI, 3 Hcavan, R. :»T« ; 
B.C. 1 Craiir & I'hill. 1^:*. 

* Hogirart V. C'uiu*, I Cniit' & I**""- 1^*. **J05 ; Ante, § 2t«I ; Post, 
{ 394, 297. 



324 EQUITY PLEADINGS. [CH. VI. 

several persons claiming title to it in privity of con- 
tract, or of tenure, to compel them to ascertain, to 
whom it is properly payable.^ But, if a mere stranger 
should set up a claim to the rent by a title paramount, 
and not in privity of contract or tenure ; or if he 
should set up a claim of a different nature, such as a 
claim to the mesne profits, in virtue of his title para- 
mount; in either case, no Bill of Interpleader would 
lie in behalf of the tenant ; for the debt or duty is 
not the same in nature or character.^ 

^ 295. The Bill should also show, that there are 
proper persons in esse^ capable of interpleading, and of 
setting up opposite claims ; for, otherwise, the objects 
of the Bill would be unattainable. On this account, 
where a Bill was brought, founded on a rumor, that 
there was issue by a person, which issue was suggested 
to be entitled to the estate in question, and praying, 
that if there was any such person, he might interplead 
with the defendant, the Bill was held to be one of a 
novel impression, and fatally defective.^ The Bill 
would be equally defective, if it did not admit, and 
show a title in each of the claimants.^ 

§ 296. The remarks, hitherto made, are applicable 
to the titles and claims asserted by the parties, who 



1 Ibid. ; 2 Story on Equity Jurisp. §811-821. See also Lowndes v, 
Cornford, 18 Ves. 299 ; Langston r. Boylston, 2 Ves. jr. 101 ; Dungey 
V, Angove, 2 Ves. jr. 304, 310, 312 ; Jew v. Wood, 3 Beavan, R. 391 ; 
S. C. 1 Craig & Phill. 185; Crawshay v. Thornton, 7 Sim. R. 391 ; 
S. C. 2 Mylne & Craig, 1 ; Ante, § 291. 

2 Dungey r. Angove, 2 Ves. jr. 304, 310 ; Johnson v. Atkinson, 3 
Anst. R. 798 ; 2 Story on Eq. Jurisp. § 812 ; Cooper, Eq. PI. 48, 49 ; 
Langston v. Boylston, 2 Ves. jr. 101, 108; Clarke v, Byne, 13 Ves. 
383, 386 ; Lowe v. Richardson, 3 Madd. R. 277. 

3 Metcalf V. Hervey, 1 Ves. 248 ; Cooper, Eq. PL 46, 47 ; 2 Story on 
Equity Jurisp. § 821 ; 1 Mont. Eq. PI. 234. 

4 2 Story on Equity Jurisp. § 821 ; East India Company v, Edwards, 
18 Ves. 377; Mitf. Eq. PI. by Jeremy, 141, 142. 



CH. YI.] BILLS OF INTERPLEADER. 325 

are called upon to interplead. But the plaintifl* should 
also show a clear title in himself to maintain the Bill ; 
for, otherwise, the Bill will be dismissed, however 
proper in other respects the case might be for an in- 
terpleader.^ Thus, for example, if the Bill should 
show, that the title of the plaintiff is that of an agent 
of one of the ])<irties only, as if he had received 
money by the authority of his principal and for his use, 
he would be bound to pay over the money to his prin- 
cipal, notwithstanding any intervening claims of a 
third person ; for a mere agent, to receive for the use 
of another, cannot be converted into an implied trus- 
tee by reason of an adverse claim, since his }X)sses- 
sion is the possession of his princi{>cil.^ 

§ 297. For a like reason, the plaintiff should (as 
has been already stated) show in his Bill, that he 
claims no interest himself; for it is in truth the very 
foundation of his Bill, that he is a mere holder of the 
stake, which is ecpially contested by the defendants, 
and that he is wholly indiflerent between them.^ The 
prayer of the Bill should also be correctly framed, by 
praying, that the deft^ndants may set forth their several 
titles, and may interplead, and settle, and adjust their 
demands between themselves. The Bill also generally 
prays an injunction to restrain the proceeding of the 
claimants, or eith(*r of them, at law ; and, whenever 
this is done, the Bill should ofler to bring the money 
into Court ; and it nmst be brought into Court before 



" Milf. Fa\. pi. by Jorrmy, 112. 113. 

* Nichol84in ▼. KimwlrH. !> Madd. \i, 17; I/owe r. Uirli:inIson, 
3 Midd. R. 277 ; 2 Story on B|iiity Jurij*p. § Hll-82<»; Mnl". Vj\. PL by 
Jeremy, 112, 113 and note. 

' LangMon v. Ho\lMton. 2 Vi'8. jr. 101, 103; Mitrbill v. Ilaynr, 
9 Sim. Sl Stu. 03; Slinu>by v. Houlinn, 1 Ws. A: H. 331 ; JSuriiftt r. 
Andcnon, 1 Mcriv. U. 4U5; (^uupcr o. Uv Tobtct, 1 Tainl. 177: 1 Mont. 
£q. PI. 931,235. 



326 EQUITY PLEADINGS. [C0. ¥1. 

the Court will ordinarily act upon this part of th^ 
prayer.^ In Bills of Interpleader, also, an affidavit is 
always required of the plaintiff, that he does not col- 
lude with either of the defendants ; and if the Bill is 
filed by an officer of a company on behalf of the 
company, he must also annex a like affidavit, and add, 
that, to the best of his knowledge and belief, the 
company do not collude with the defendants.^ 

^ 297, a. In an interpleader Bill, if the defendants 
do not deny the statements of the Bill, the ordinary 
decree is, that the defendants do interplead ; and the 
plaintiff then withdraws from the suit.^ But the de- 
fendants, or either of them, are at liberty to contest 
and deny the allegations in the Bill, or to set up dis- 
tinct and independent facts in bar of the suit; and, in 
such a case, the plaintiff must reply to the answer, 
and close the proofs in the usual manner, before he 

1 Wyatt, PracL Reg. 78, 79 ; Mohawk & Hudson Railroad ComiNuiy 
V. Clute, 4 Paige, R. 384, 391 ; Richards v. Salter, 6 John. Ch. R. 445. 
The common form of the prayer is given in Van Heythuysen's Elquity* 
Draflsman, p. 299, in a case of rent. It prays, '* That they (the defend- 
ants) may severally set forth, and discover, what right or title they and 
each of them claim or have in and to the said moiety of the said premi* 
ses ; and how they and each of them derive and make out the same ; and 
that they may set forth, to which of them the said rent and arrean of 
rent doth, or do of right belong, or is or are payable, and may inter- 
plead and settle, and adjust their demands between themselves, your otator 
being ready and willing, and hereby offering to pay the said rent and ar- 
rears of rent to such of the said confederates, to whom the same shall 
appear to belong, being indemnified. And that your orator may be at 
liberty to bring the same into this honorable Court, which your orator 
doth hereby offer to do, for the benefit of such of the several parties, who 
shall appear to be entitled thereto. And that the said several defend- 
ants, and each and every of them, may be restrained by the injunction of 
this honorable Court, from all proceedings at law against your orator for 
the said rent and arrears of rent. And for further relief," &c. See also 
Barton's Suit in Eq. 46, 47 ; Mitf. Eq. PI. by Jeremy, 142, 143. 

9 Bignold V. Audland, 11 Sim. R. 24, 25 ; Ante, ^ 291 ; Mitf. Eq. PI. 
by Jeremy, 49, 143. 

3 City Bank v. Bangs, 2 Paige, R. 570, 573 ; Angell v. Hadden, 
16 Ves. 203; 4 Bro. Ch. R. 309, note; Post, § 362. 



/ .. 



CU. VI.] DILLS OF INTERPLEADER. 327 

can bring the cause to a hearing between liiniself and 
the defendants ; and at the hearing only can he insist 
(if such is his right) ui>on a decree, that the defendants 
do interplead.^ 

^ 297, b. We may conclude this head of Interpleader 
by remarking, that although a Bill of Interpleader, strict- 
ly so called, lies only, where the party applying claims 
an interest in the subject-matter ; yet there are many 
cases, where a Jiill, in the nature of a Bill of Inter- 
pleader, will lie by a party in interest, to ascertain and 
establish his own rights, where there are othi»r con- 
flicting rights l)etween third persons. As, for instance, 
if a plaintiflf is entitled to e(|uitable relief against the 
owner of property, and the legal title thereto is in dis- 
pute between two or more persons, so that he cannot 
ascertain, to which it actually belongs, he may file a 
Bill against the several claimants, in the nature of a 
Bill of Interpleader for reli<;f. 80, it seems, a pur- 
chaser may file a Bill, in the nature of a Bill of 
Interpleader, against the vendor, or his assignee, and 
any creditor, who s(»eks to avoid the title of the as- 
signee, and pray the direction of the Court, as to 
whom the purchase mont^y ^hall be |Kiid. So, if a 
mortgagor wishes to redeem the mortgaged esiatt*, and 
there are conflicting claims betw(»en third jhtsoiis, as 
to their title to the morti::iire moncv, he may brini; 
them l)cfore the Court, to asccTtain thc^ir rights, and to 
have a decree for a redemption, so that In; may make 
a secun; payment to the |mrty (entitled to the money. 
In these cases, tht; plaintitV seeks relief for himsc^lf ; 
whereas, in an interpleadini; Bill, strictly so called, the 



* niy Hank r. W.iwjH, 2 TaiL"-. K :>70. r>7J ; Stitham r. Hnll. I Tnr- 
niT & Uiiftn. 'M\\ v! Story on V\*\. Jurifji. § ^'2'2, ^'J1 ; Jmir*. r. <iiliii:iii. 
Cooper, K. t'J; Hryincr V. niirh:in:iii, 1 (*ox, R. I'J.'i ; DiiKu ot' Uoltoii 
r. WiUianiH, 1 Bro. t'h. H. iMi7. 



328 EQUITY PLEADINGS. [CH. VI. 

plaintiff only asks, that he may be at liberty to pay 
the money, or deliver the property to the party, to 
vi^hom it of right belongs, and may thereafter be pro- 
tected against the claims of both. In the latter case, 
the only decree, to which the plaintiff is entitled, is a 
decree, that the Bill is properly filed; or, in other 
Vi^ords, that he shall be at liberty to pay the money, or 
bring the property into Court, and have his costs ; and 
that the defendants interplead, and settle the conflict- 
ing claims between themselves. So, a Bill, in the 
nature of an interpleading Bill, will lie by a bank, 
which has offered a reward for the recovery of money 
stolen, and a proportionate reward for a part recovered, 
where there are several claimants of the reward, or a 
proportion thereof, one or more of whom have sued the 
bank. And in such a Bill all the claimants may be 
made parties, in order to have their respective claims 
adjusted.^ 

§ 298. Secondly, in regard to Bills of Certiorari. 
The object of this Bill (which is rarely, if ever, used 
in America) is to remove a suit in Equity, pending in 
some inferior Court, into the Court of Chancery, or 
into some other proper superior Court of Equity (if 
any such there be), on account of some alleged incom- 
petency of the inferior Court, or some injustice in its 
proceedings. This species of Bill, having this sole ob- 
ject, merely prays the writ of certiorari. The Bill first 
states the proceedings in the inferior Court ; it then 
states the cause of the incompetency of the inferior 
Court, by suggesting, that the cause is out of its ju- 
risdiction ; or that the witnesses live out of the juris- 
diction ; or that the defendants live out of the juris- 



1 2 Story on Eq. Jurisp. (2d edit.) § 824, and cases there cited ; Bedell 
». Hoffman, 2 Paige, R. 199. 



CH. Yl.] DILLS OF CERTIORARI. 329 

diction, and are not able, by age or infinnity, or the 
distance of the place, to follow the suit there ; or that, 
for some other cause, equal justice is not likely to be 
done them ; and it then prays a writ of certiorari, to 
certify and remove the record and the cause to the 
superior Court.^ It does not pray, that the defendant 
may answer, or even appear to the Bill ; and, conse- 
quently, it prays no writ of sub|)ocna, although a sub* 
poena must be sued out and served.^ When the cause is 
removed from the inferior Court, the Bill exhibited in 
that Court is considered as an original Bill in the 
Court of Chancery, or other superior Court, and is pro- 
ceeded upon as such.^ The proceedings, however, on 
it are peculiar ; but they belong rather to the practice, 
than to the pleadings, of a Court of Equity/ 

> Wyttt, Pr. RrjT. so -81; 1 Harris. Ch. Pr. by Newl. 4!). The 
furin of the writ uf ccrtitirari will be found in llindr^s Ch. l*r. 581. The 
p ro cced inga to justify the 8ui>crinr Court in retaining the Bill, and tlio 
MggestioiiB on which the removal of the proceedings from the inferior 
Court are required, arc to be proved by satisfactory depositions in the 
superior Court. Wyatt, Pr. He*;. H3, 81; 1 Harris. Ch. Pr. by New!. 
49-61. 

« Mitf. Eq. PI. by Jeremy, M) ; WyaU, Pr. Rep. 82 ; Cooper, Kq. PI. 
50, 51 : Hinde, Ch. Pr. 581 ; Id. 28;' 1 Mont. Va\. PI. 211. In the form 
of the Dill given in Van Ilcyth. 1'^]. l)raf\s. 312, there is a prayor for a 
milipenm, tnd also for an answer. But the proposition in the text is 
bid down in all the authorities cited to support it. See also 1 Mont. Kq. 
PI. 944, and note (2). See Barton's Suit in Equity, 51, 52, where the 
common form of the prayer w ^iven. 

' Mitf. Flq. PI. by Jeremy, 51. 

4 Mitf. Eq. PI. by Jeremy, 50, 51 ; Cooper, i;i. PI. 54», 51 ; lliiidr, ih. 
Ft. 28-32. 



KQ. PL. Vi 



330 EQUITY PLEADINGS. [CH. VII. 



CHAPTER VIL 

BILLS NOT PRAYING RELIEF BILLS TO PERPETUATE 

TESTIMONY, AND TO TAKE TESTIMONY DE BENE 
ESSE, AND BILLS OF DISCOVERY. 

^ 299. We come, in the next place, to the consid- 
eration of Original Bills, not praying for relief. These 
(as we have seen^) are of two kinds. (1.) Bills to 
perpetuate testimony, or to examine witnesses de bene 
esse. (2.) Bills of Discovery, technically so called. 
Upon the peculiar frame and structure of each of these 
classes of Bills, a few words are proper to be said. 

^ 300. And first, in regard to Bills to perpetuate 
testimony. The sole object of such a Bill is, to assist 
other Courts, and to preserve evidence to prevent fu- 
ture litigation.^ In order to maintain such a Bill, it is 
necessary to state on its face all the material facts, 
which are necessary to maintain the jurisdiction. It 
must, in the first place, state the subject-matter, touch- 
ing which the plaintiff is desirous of giving evidence.* 
Thus, for example, if the object of the Bill is to per- 
petuate the testimony of the witnesses to a deed re- 
specting real estate, the deed should be properly de- 
scribed, and the names of the witnesses, who are to 
prove the same, be set forth.^ And if the object of 
the Bill is to perpetuate the evidence of witnesses to 

1 Ante, § 19. 

a Cooper, Eq. PI. 52 ; Mitf. Eq. PI. by Jeremy, 148, 149 ; Barton's 
Suit in Eq. 63, 64. 
3 Mitf. Eq. PI. by Jeremy, 61. 
^ See Mason v. Goodburne, Rep. Temp. Finch, 391. 



:H. VII.] DILLS TO PERPETUATE TESTIMONV. 331 



facts in pais, it is not sufficient to state generally, that 
they can give evidence as to certain facts; but the 
Bill must state specially, what these facts are.* 

^ 301. In the next place, the Bill should also show, 
that the plaintiff has some interest in the subject-mat- 
ter, which may be endangered, if the testimony in 
support of it is lost ; for, unless he has some inten^st, 
he is not entitled to maintain the Bill.^ A mere ex- 
pectancy, however strong, is not suflicient ; but the 
party must have a positive interest. For it has been 
well said ; ^^ Put the; case as high as possible ; that the 
party, seeking to peri)etuate the testimony, is the next 
of kin of a lunatic ; that the lunatic is intestate ; that 
he is in the most helpless state, a moral and physical 
impossibility (though the; law would not so regard it), 
tliat he should ever recover ; even if he were in artic- 
ulo mortis, and the Bill was filed at that instant ; still, 
the plaintiff could not (|ualiry himself to maintain it, as 
having any interest in the subject of the suit."^ But 
if there Ixi any vi»sted interest, however slight or 
trifling in value, whether it hv absolute, or contingent, 
whether it l)e present, or remote and future in enjoy- 
ment, is wholly inunaterial.^ Nay ; it has been said, 
that though the heir apparent, or next of kin, (*ould 
not, in the case put, maintain a Bill ; yet, if they had 
entered into any contract with respi»ct to their expec- 
tancies, and |)ossil)ilities, they mii^ht, u|)on the f(N)ting 
of that contract, UKiintain a Bill to |HTpetuate the 



1 Knif^ht r. Knifrht, i MaHd. H. h. in. 

• Cofiper, Kq. PI. .V2 ; M:lm»ii r. CHMMllMiriir, Krp. Ttliip. Fim-li, 31M ; 
a Slory, C'omm. mi lOjniiy Jiiri>|i. ^ I*»II. 

' Durnlpy 0. FiizhanliiiL'<*. ♦• Vis 'Jtm: Sarkvillr r. Ay!fw<»rili. I Vi-rii. 
105; S. r., I Iv|. AbriiJ;:. 'J:JI ; Sjimh r. Attnrnry-dimril. fii'il »J Vr.n. 
MO; 1 KnwIiT, Kxrh. IV 3^1; and in i:» Vrs. I3«i ; Mitf. Ivj. IM. by 
Jeremy, 51 ; t'cmprr, Kii. PI. .VJ-:»I ; Allan v. Allan, 15 \Vs i:ri. I3#i. 

4 AHan v. Allan, 15 Voi. n.'i. VM\. 



% 



332 EQUITY PLEADINGS. [CH. VII. 

evidence.^ However ; it is not every interest, which 
the Court will protect by perpetuating evidence ; for 
if it be such an interest, as may be immediately barred 
by the party, against whom the Bill is brought, the 
Court will withhold its assistance ; for it woidd be a 
fruitless exercise of power.^ 

^ 302. On the other hand, it seems equally indis- 
pensable to a Bill of this kind, that it should state, that 
the defendant has, or pretends to have a title, or that 
he claims an interest to contest the title of the jdain- 
tiflF in the subject-matter of the proposed testimony.' 
For, unless the defendant has, or claims some such 
interest, it is utterly fruitless to perpetuate the testimo- 
ny ; since it can have no operation upon those, who 
are the real parties in interest. We have seen, how- 
ever, that it will be su£Scient to bind all the parties 
in interest to bring before the Court, those, who are 
judicially held to represent them all ; as, for example, 
the first tenant in tail, who represents all subsequent 
interests.^ 

§ 303. In the next place, the Bill must show some 
ground of necessity for perpetuating the evidence ; as 
that the facts, to which the testimony of the witnesses, 
proposed to be examined, relate, cannot be immediate- 
ly investigated in a Court of Law ; or, if they can be 
so investigated, that the sole right of action belongs 
exclusively to the other party ; or, that the other party 
has interposed some impediment (such as an injunc- 
tion) to an immediate trial of the right in the suit at 
law ; so that, before the investigation can take place, 

1 Dureley v, Fitzhardinge, 6 Ves. 260, 261 ; Cooper, Eq. PI. 63, 54. 
8 Dureley v. Fitzhardinge, 6 Ves. 261 -263 ; Cooper, Eq. PL 53. 
3 Mitf. Eq. PI. by Jeremy, 53 ; Dureley r. Fitzhardinge, 6 Ves. 260, 
261 ; Cooper, Eq. PI. 56; 1 Mont. Eq. PI. 271. 
* Ante, § 144, 145 ; Cooper, Eq. PI. 56. 



.dc^ 



CH. VII.] BILLS TO PERPETUATE TESTIMONY. 333 

the evidence of a matcruil witness is likely to he lost 
by his death or departure from the country.^ In the 



1 Mitf. Eq. PI. by Jeremy, 5'J, 118, and note (y) ; North v. Gray, 1 
Dick. 14 ; Cox v. Colley, 1 Dick. R. 55 ; Dorset r. (Jirdlc, Prec. Ch. 
531. Lord Rcde8dale*8 language is general ; '* Or, that before the facta 
cmo be ioveatigated in a Court of Law, the evidence of a material witness 
is likely to be h)st by his death, or departure from the realm;*' without the 
qiuJifications stated in the tt>xt. Tpon this passage, Mr. Jeremy has 
given the following note. *' According to the latter part of this proposi- 
tion, the right of action may be either in the plaiiitiflf or defendant in 
(Equity. With reference to the defendant, the time of bringing the action 
depending upon his will, the situation of the plaintiflT would be similar to 
that intimated in the former part of the proposition in the text, 1 Sim. & 
Stu. 89 ; and with respect to the plaintiif, it must be understood to relate 
to the case of his not l>eing able at present to su.stain an action. Cox v. 
Colley, 1 Dick. 55; 1 Sim. & Stu. HI ; for« if he should have such present 
right, hia object could only be, what is technically termed an examination 
de bene esse, upon the ground of his having only one witness to a matter, 
on which his claim de]>ends, or, if he has more, on the ground of their 
being aged, or too ill or in (inn to attend in a Court of Law ; and that he 
ia therefore likely to lose their testimony iK'fore the time of trial, 1 Sim. 
St Stu. DU; in which case it srums, that it <iught to l>e sUited in the l]il], 
that the action was brought l>efon* the same was filed. Angell v. Angell, 
I Sim. & Stu. 83. On the general Kubject, see the cases cited, 1 Sim. & 
Stu. 93, note, and Teale v. Teale, 1 Sim. & Stu. 3»5.*' In Cox v. Col- 
ley, 1 Dick. R. 55, the plaintiff had brought an ejectment at law. But 
the proceedings were stayed by an injunction, which was ]>rocured by the 
defendant at law ; and the plaintiif brought his Bill in I'^iuity, to perpet- 
vatfl the tcatimony ; and on demurrer the Bill was sustained. Sir John 
Leach, in Angell v. Angell, 1 Sim. & Stu. 83, stated very fully tho 
grounds, upon which this sort of Bill is niaintainalile ; and the distinction 
between it and a couunission to take testimony dr Unc esse. His language 
waa; ** If it be possible, that the niattiT in question can, by the ]iarty, 
whofilea the Bill, be maile the subject of immediate judicial investigation, 
no auch suit ia entertained. But if the party, who files the Bill, can, by 
no means, bring the matter in ()uestion into present judicial invistiKation 
(which may hapi>cn, when this title m in remainder, or when he i.s him- 
■eir in possession), there. Courts of F^|uity will entertain such a suit; 
for, otherwise, thu only testiimniy. which nmld supftort the plaiutifT's ti- 
tle, might be I o»t by the draths of hiH uttniHa<-s. VVhire he i« himifelf 
in poMCBiion, the adverse party might purpos«'iy delay bin claim, with a 
Tiew to that event. It is, therefnre, p round of demurrer to a Bill to per- 
petuate testimony, gcii(>rally, that it is not alleged by the plainiitr, that the 
matter in queation cannot be made by him the subject of preM.'nt judicial 



334 EQUITY PLEADINGS. [CH. VII. 

former case, the Bill must allege, that the plaintiff is 
in possession of the property, or the right, without any 
disturbance by the other party, upon which an action 
at law can be founded.^ In the latter case, the Bill 
must allege the specific facts, on which the plaintiff 
puts his case ; and also, that the witnesses are old, or 
infirm, or in ill health, and not likely to live ; ^ or that 
he has no present right to maintain an action ; as if he 
have a title in remainder or reversion only after a 
present existing estate for life.* Without such allega- 
tions, the Bill will be clearly demurrable ; since, if the 
subject-matter is capable of being immediately inves- 
tigated at law, there is no ground to perpetuate the 
testimony ; but it will be the party's own laches not 
so to try his right. If an action be actually pending, 



investigation. But Courts of Equity do not merely entertain a jurisdic- 
tion to take or preserve testimony generally, to be used on a future occa- 
sion, where no present action can be brought; but also, to take and pre- 
serve testimony, in special cases, in aid of a trial at law, where the sub- 
ject admits of present investigation. At law, no commission to examine 
witnesses, who are abroad, for the purpose of being used at the trial, can 
go without the consent of the adverse party. Court3 of E^juity will, 
upon a Bill filed, grant such commission without the consent of the ad- 
verse party. So, Courts of Equity will entertain a Bill to preserve the 
testimony of aged and infirm witnesses, to be used at the trial at law, if 
they are likely to die before the time of trial can arrive ; and will even 
entertain such a Bill to preserve the testimony of a witness who is neither 
aged nor infirm, if he happen to be the single witness to support the 
case." In Moodalay v. Morton, 2 Dick. R. 652; S. C. 1 Bro. Ch. R. 
469, a Bill to perpetuate testimony was allowed, where there was a pres- 
ent right of action. But that case was founded in special circumstances, 
perfectly consistent with the general rule ; for the object of the testimony 
was to ascertain against whom the action should be brought, as the plain- 
tiff had no present means of knowing, who that party was. 

1 Cooper, Eq. PI, 53; Mitf. Eq. PI. by Jeremy, 51, 52, 148, 149; 
Wyatt, Pr. Reg. 74. 

^ Mitf. Eq. PI. by Jeremy, 52 ; Mason v. Goodburne, Rep. Temp. 
Fmch, 391. 

3 Dursley v. Fitzhardinge, 6 Ves. 260, 261. 



CH. ¥11.] BILLS TO PERPETUATE TESTIMONY. 335 

the Bill should be of a diflfercnt sort, a Bill dc bene esse^ 
to take the testimony of the witnesses.^ 

^ 304. Where a Bill is framed on the ground, that 
the testimony of a witness may be lost by his death, 
or departure from the realm, before the case can be in- 
vestigated in a Court of l^aw, it seems proper also, in 
order to avoid any objection, to annex to it an aflidavit 
of the circumstances, by which the evidence, intended 
to be perpetuated, is in danger of being lost.'^ This 
practice is adopted in other cases of Bills, which have 
a tendency to change the jurisdiction of the subject- 
matter from a Court of Law to a Court of Equity. 

§ 305. In the next place, the right, of which the 
Bill is brought to perpetuate the testimony, should be 
described with reasonable certaintv in the Bill, so as 
to point the proper interrogatori(;s on both sides to the 
true merits of the controversy. Thus, for example, 
where a Bill is brought to ])erpetuate the testimony of 
witnesses, touching a right of way, the Hill should state 
the termini of the way, the per and trans, as exactly 
as in a declaration ; for a defect of this sort will make 
the Bill demurrable.^ Thus, whc^re a Bill was brought 
to pcr{)ctuate the testimony of witnesses res[)ecting a 
right of common and of way ; and it alh*gcd, that the 
tenants, owners, and occupiers of the said messuage 
and lands, &:c. in right thereof, or otherwise, have from 
time, &:c. and of right ought to have common of ])as- 
ture in and U))on a certain waste or common, called 



> Anfrellv. Angfll, 1 Sim. ^ Stu. 83; Dew o. flarkc. 1 Sim. & Stu. 
106; 3 Story's Comm. on Ivfuity Jurtsii. f ITjOT, 1506 ; Parry r. Kofrprs, 
I Vem. 441 ; Bramilyn v. Ord, 1 Aik. 571 ; Cooinir, Vj\. PI. 55; l)ur»- 
ley 9. Filzhardinfro, Vi-s. 2«i4>. 

■ Milf. Eq. PI. by Jeremy, 5-J, 53; Phillips v. f'arew, 1 P. Will. 117; 
Angell V. An(rell, 1 Sim. & Stu. b3, U3 ; Shirley r. llart Fcrre rM. 3 P. 
Will. 77. 

3 G«U V. Hayward, 1 Vent. 3P2 ; Cuo|K:r, Y^. Pi. 50. 



336 ^ EQUITY PLEADINGS. [CH. VII, 

Biownbee, for their horses, &c., and also a way or 
road for themselves over, &c. ; upon demurrer it was 
held (^s we have already seen), that the charges were 
too general, and not sufficiently descriptive of any 
particular right.* So, where the Bill seeks to perpetu- 
ate the testimony of witnesses to a will, it is proper 
in the Bill to set forth the whole will in fuBc verboL^ 

§ 306. The prayer of the Bill also requires atten- 
tion. It should pray leave to examine witnesses touch- 
ing the matter stated, to the end that their testimony 
may be preserved and perpetuated.^ It should also 
pray the proper process of subpcma. But it should 
not pray, that the defendant may abide such order and 
decree, as the Court shall think proper to make ; for 
that will turn it into a Bill for relief, which is incon- 
sistent with the nature of a Bill to perpetuate testi- 
mony.* If the Bill should pray relief, it will of course 
be demurrable, and may be dismissed for this cause.^ 



1 Cresset v, Milton, 1 Ves. jr. 449; S. C. 3 Bro. Ch. R. 481 ; Cooper, 
Eq. PI. 65; Ante, §244. 

a Wyatt, Pr. Reg. 74. 

3 Mitf. Eq. PL by Jeremy, 51 ; Cooper, Eq. PI. 52. 

^ Post, ^ 312, 314; Rose v. Gannel, 3 Atk. 439; Vaughan v. Fittger- 
ald, 1 Sch. & Lefr. 316; Cooper, Eq. PI. 52; Mitf. Eq. PI. by Jeremy, 
51, note (u). 

5 Ibid.; Dallon v. Thomson, 1 Dick. R. 97. Where the Bill is to per- 
petuate testimony, and also for relief, the Court will frequently allow the 
plaintiff to amend his Bill by striking out the relief, even afler the testi- 
mony has been taken under it, and thus give effect to it. Vaughan v. 
Fitzgerald, 1 Sch. & Lefr. 316. A Bill to perpetuate testimony is never 
brought to a hearing. Ibid. If the cause should improperly be brought 
to a hearing, it will be dismissed. But the depositions taken may still be 
used as evidence, even though the Bill is dismissed. Hall v. Hoddesdon, 
2 P. Will. 162, 163; Anon. 2 Ves. 497; Anon. Ambl. R. 237; Ackland 
V. Gaisford, 2 Madd. 37, note. One form of prayer given in Van Heyth. 
Eq. Drafts, is, *' That the plaintiff may be at liberty to examine his wit- 
nesses to the several matters and things herein before mentioned, and par- 
ticularly respecting the boundary (the point in controversy) between the 
said tenement called, &c. ; and the said tenement called, &c. ; and that 



CH. VII.] aiLLS TO TAKE TESTIMONY DE BENE ESSE. 337 

Care should also be taken, not to mix up in the Bill 
other matters, which may require very difTerent de- 
cretal orders, as to the publication of the testimony ; ^ 
otherwise, it will be demurrable. 

^ 307. Secondly, in regard to Bills to take testi- 
mony de bene esse. This sj)ecies of Bill bears a close 
analogy to Bills to perpetuate testimony, and is often 
confounded with the latter. But it stands u[)on dis- 
tinct considerations.^ Bills to perpetuate testimony (as 
we have seen) can be maintained only, when no pres- 
ent suit can be brought at law by the party, seeking 
the aid of the Court to try his right.^ Bills to take 
testimony de bene esse^ on the other hand, are sustain- 
able only in aid of a suit already depending/ The 
latter may be brought by a jierson, who is in jx)sses- 
sion, or who is out of possession ; and whether he is 
plaintiflf, or he is defendant, in the action at law. 

§ 308. The object of the Bill is to take the testi- 
mony of witnesses for the trial at law, where the testi- 
mony may otherwise be lost ; as, for example, where 



the plaintiff* may be at ]il>criy on all future occasions, to read and make 
aw of the same, as he shall he advised.'* The form of the ]ir:iyer on a 
Bill to perpetuate the testimony of the subscribing witnesses to a will, in 
the Mine work, is; '*That your orator may \ic at liberty to examine his 
witnesses, with respect to the t'xi:cution and attcstatitm of the said will, 
and sanity of mind of the said A. R. at the making; of the same, so that 
their testimony may U* |ierp(*tuaied and ])n*served.** Van lleyth. ¥a\. 
Drafts. 31H. Sre aUo Harttm, Suit in Va\. 51. As to th<* publication of 
the testimony, and the prt^rcfdiii^'s and order to lie had, when the testi- 
laony is to be used in a trial at law, not under the order of th«- Tuurt, 
■ee Attorney -General r. Kay. *2 Hare, H. TilH. 
1 Dew V. Clarke, 1 Sim. 6l Stu. lOrt. 

* Ante, $ 303. 

' 9 Story on F^j. Jurisp. § 1513; Tooper, F^. PI. 57; Ante, ^ 303. 

* Angelt V. Angell, I Sim. 6l Stu. b3; Ante. § 303, note. The case 
of Phillips V. Carew, 1 P. Will. 1 17, seems the other way. But n» author- 
ity ban been questioned, and seems now overruled m Angell v. Angell, 1 
8im. at Stu. 83, 93; 9 Story on Eq. Jurisp. $ 1B13, note (3). 

£Q. PL. 43 



338 EQUITY PLEADINGS. . [CH. Vlli 

the witnesses are aged or infirm, or are about to de- 
part from the country.^ So, if a witness is the only 
witness to the thing, to which he is to be examined, a 
Bill will lie, on account of the general uncertainty ctf 
human life, to take his testimony de bene esse, notwith- 
standing he is not either aged or infirm.^ In general, 
a witness is not treated as being aged in the sense of 
the rule, unless he is seventy years of age.^ But if he 
is infirm, or in ill health, to an extent likely to endan- 
ger or destroy his life, or to prevent his attendance at 
the trial, his testimony may be taken at any age.* If 
a witness is going out of the jurisdiction of the Court, 
although only into a state or country under the same 
general sovereignty, his testimony may also be taken; 
as, for example, if he is going from England to Scot- 
land ; or in America, if he is going from one State to 
another/ 

§ 309. In framing the Bill, therefore, care should 
be taken to allege all the material facts, upon which 
the right to maintain the Bill depends, whether it is 
dependent upon the age, or the infirmity, of the wit- 
ness, or upon his being about to depart from the coun- 
try, or upon his being a single witness. And there 
should also be an affidavit annexed to the Bill of the 
circumstances, by which the evidence, intended to be 
perpetuated, is in danger of being lost, as by death, 
departure from the country, or otherwise.* The reason 



1 Cooper, Eq. PI. 57. See Dicker v. Power, 1 Dick. R. 112; Shelley 
V. , 13 Ves. 56 ; Rowe v. , 13 Ves. 260. 

2 Shirley ». Earl Ferrers, 1 P. Will. 97; Pearson v. Ward, 2 Dick. 
R. 648. 

3 Cooper, Eq. PI. 57 ; Fitzhugh ». Lee, Arabl. R. 65 ; Shelley v. , 

13 Ves. 56; Rowe v. , 13 Ves. 261. 

4 Ibid. ; Phillips v. Carew, 1 P. Will. 117. 
s Botts V. Verelst, 2 Dick. 454. 

6 Cooper, Eq. PI. 57 ; Mitf. Eq. PI. by Jeremy, 52 ; Angell v. Angell, 
I Sim. & Slu. 83, 93; Phillips v. Carew, I P. Will. 117. 



CH. VII,] BILLS OF DISCOVERY. 339 

assigned is the same, which has I)c<mi already men- 
tioned ; that it has a tendency to change the jurisdic- 
tion of the subject-matter from a Court of Law to a 
Court of Equity.' This reason is perhaps not quite 
satisfactory; iK^causi; the aim of the Bill is in no 
sort to change the forum, in which the merits of the 
case are to be heard and tried ; but UKTcly to ])revent 
the loss of the testimony at the trial. A l)etter ground 
would seem to be, that the Bill has a tendency to 
create delays, and may be used as an instrument un- 
duly to retard the trial; and therefore an aflidavit, that 
the Bill is well founded, is required.^ The affidavit 
should be positive, as to the material facts. Thus, for 
example, if it relies upon the fact, that the witness is 
the only witness to a material fact, it will not be sufli- 
cient, that the aflidavit states, that he is so in the be- 
lief of the party; but it must bo positively stated, thai 
he is the onlv witness, who knows the fact.* 

^ 310. In other respects, the general ruh*s, already 
stated in regard to Bills to perpetuate testimony, are 
for the most part applicable to Bills to take testimony 
(te bene esse ; and, therefore, it is unnecessary to repeat 
them in this place. 

§ 311. Thirdly, in regard to the Bills of Discovery. 
It has been truly said, that every Bill for relief is in 
reality a Bill of Discrovery, since it asks from the de- 
fondant an answer upon oath, as to all the matters 
charged in the Bill, and seeks from him a dis<:ovcry of 
all such matters.* But a Bill of Discovery, emphati- 
cally so called, of which we are now treating, is a Bill 



> Cooper, r/\. PI. 57; Mitf. Eq. PI. by Jeremy, W. 
• See Angell r. Anjrcll, 1 Sim. A: Stu. h3, «-J. 

' Rowe V. , 13 Vrs. -Jfil. 

« Milf. Va\. pi. by Jeremy , 53; 2 Story on K^\. Jurw«p. ^ fi'^I*. IIW ; 
Cooper, Eq. PI. r.M. 



340 EQUITY PLEADINGS. [CH. VII. 

for the discovery of facts, resting in the knowledge of 
the defendant, or of deeds, or writings, or other things 
in his custody or power, and seeking no relief in con- 
sequence of the discovery, although it may pray for the 
stay of proceedings at law, till the discovery is made.^ 
The Bill is commonly used in aid of the jurisdiction of 
some Court of Law, to enable the party, who prose- 
cutes, or defends an action at law, to obtain a discov- 
ery of the facts, which are material to the prosecution 
or defence thereof.^ If it can be used in any other 
cases, they are very few, and under very special cir- 
cumstances.^ It is a vexed question, upon which the 
authorities are contradictory, whether a Bill for discov- 
ery lies in aid of a suit or defence to a suit pending in 
a foreign Court.* For the more full exposition of the 
circumstances, under which it lies, the learned reader 
is referred to other works, which professedly treat upon 
this subject.* 

§ 312. We have already suggested, that a Bill of 
Discovery, properly so called, never prays any relief. 
If a Bill, therefore, which is maintainable in Equity 
solely as a Bill for discovery, should contain a prayer 
for relief also, it will, in England, (although not in 

1 Mitf. Eq. PI. by Jeremy, 53 ; 2 Story on Eq. Jurisp. § 1483. 

9 Milf. Eq. PI. by Jeremy, 53, 183, 225 ; Cooper, Eq. PI. 60; Hare 
on Discov. 119, 120 ; March v. Davison, 9 Paige, R. 580 ; Lane v, Steb- 
bins, 9 Paige, R. 622 ; Patterson v. Barr, 9 Paige, R. 627 ; Post, § 319. 

3 See Hare on Discovery, 79, 110, 111 ; Cardale v. Watkins, 5 Madd. 
R. 18. 

4 In Bent v. Young, 9 Sim. R. 180, the Vice-Chancellor held, that a 
Bill of Discovery would not lie in aid of a defence to a suit in a foreign 
Court ; and he stated that the case of Crowe v. Del Ris, cited in Mitf. 
Eq. PI. by Jeremy, 186, note {q), did not support the doctrine. But in 
Mitchell V. Smith, 1 Paige, R. 287, Mr. Chancellor Walworth held, that 
a Bill of Discovery would, lie in aid of a prosecution or a defence in a 
foreign Court 

* See 2 Story on Eq. Jurisp. eh. 41, § 1480 - 1504 ; Hare on Discov- 
ery, passim. 



CH. VII.] BILLS OF DISCOVERT. 341 

America,) be open to a demurrer to the whole Bill ; 
and the party will not be allowed to maintain his Bill 
for the discovery only; for he is bound to shape his 
Bill, according to what he has a right to pray.* But 
the defendant may, nevertheless, if he chooses, demur 
to the relief only, and answer as to the discovery 
sought.'^ Indeed, if he files a plea only to the relief. 



» Price r. James, 2 Bm. Cli. U. 310; Collis v. Swayne, 4 Bro. Th. R. 
480 ; Loker r. KoUc, 3 Yes. R. I, 7; llmlj^kin v. Lonj^dcn, 8 Vcs. 3 ; 
Goxdon V. Simpkinson, II Yes. 509; Muckleston v. Brown, fi Vcs. 3; 
Todd r. Gee, 17 Yes. 373 ; Barker v. Ihuiv, fi Yes. (\Si\, Miif. l^i. PI. 
by Jeremy, 183, 184 ; Pitts v. Short, 17 Yes. '213 ; Jones r. Jones, 3 
Meriv. 101, 170; Williams v. Steward, 3 Meriv. R. 502; (.'ooper, Va\. 
PI. 58, 188; Dcarc v. Aitorncy-CJeneral, 1 Y. & Coll. 205, 200; Al- 
breicht V. Sussman, 2 Y. & Beam. 328; Morris v. Morgan, 10 Sim. R. 
341. The rule formerly adopted in England was diflTcrcnt. It was, that 
if the Bill was for discovery and relief, and it was good for discovery only, 
a general demurrer to the whole Bill was had ; for thou<rh the party was 
not entitled to relief, he was not to lie prejudiced for having ai»ked too 
much. Brandon r. Sands, 2 Ves. jr. 511 ; Sutton v. Scarborough, Yes. 
75; Attorncy-Cieneral r. Brown, 1 Swanst. 294; Miif. Vai. PI. by Jere- 
my, 183, 1H4. In New York the old Kncjliftti rule is adhered to ; and, 
indeed, it has much to commend it. See Laipht v. Morgan, 1 John. Tas. 
130; S. r. 2 Cain. Cas. in Err. 314; l^e Roy v. Veeder, 1 John. ('as. 
183; Le Roy v. Servis, 1 Cain. Cas. in Err. 1 ; S. C. 2 Cain. Cas. in 
Kit. 175; Kirob(;rlcy r. Sells, 4 John. Ch. R. 107; Livin^.'^ton v. I^v- 
infTBton, 4 John. Ch. R. 2'JO; Higeiuhotham v. Burnet, 5 John. Ch. R. 
184. The proper course is held, in New York, to be, to demur to the 
relief, and to answer to the discovery. Ifigj^inlnitham v. Burnet, 5 John. 
Ch. R. 184. See Ante, ^ .300 ; Post ^ 411, 540. The same doctrine 
was affirmed in the Supreme Court of the Cnited States in Livinuston r. 
Story, 9 Peters, R. 032, 05S, where Mr. Jus(icn Thomp»(ui, in df*livering 
the opinion of the Court, said ; *' And if any part<if the Bill i.s good, and 
entitles the com])lainant eitht:r to relief or discovery, a deinurrfr to the 
whole Bill cannot bo suMtained. Vi is an established and univerN:iI rule of 
pleading in Chancery, that a defendant may meet a coinpl.iinant'H Bill hy 
■eTerat modes of defmce. lie in:iy ilfuiur, answer, ami pleiul to different 
parts of a Bill. So that if a Bill for discovery .ind relief contains pmper 
matter for the one, and not for the other, the deft-ndant Hhoulil :inswer the 
proper, and demur to the improper matter. But if he demnrH to the 
whole Hill, the demurrer must bi^ overruled.** 

• Hodgkin v, I^ongdcn, H Yes. 3; Cm»iM?r, V/\. PI. 117; Whitehiirrh 
r. Golding, 3 P. Will. 541 : 8. C. I F^i. Abridg. II ; Todd v. Gee. 17 



342 EQUITY PLEADINGS. [CH. VII. 

he is bound to put in answer giving the discovery; 
for in such a case he professes, that he will give the dis- 
covery, and his plea will be bad without it.^ If a Bill 
of Discovery is filed manifestly in aid of a defence at 
law, and a prayer for equitable relief is added, the de- 
fendant is not bound to give any discovery beyond 
what is incidental to that relief ; for by mixing up the 
right 10 a discovery in aid of the defence at law with 
the equitable relief, he would get the discovery design- 
ed to aid the defence, without paying the costs in 
ordinary cases allowed upon a mere Bill of Discovery.* 
§ 313. And hence it is, that whenever the jurisdic- 
tion of a Court of Equity is mainly founded on the 
right to a discovery, and the party goes on to seek re- 
lief, the Bill must contain allegations sufficient to enti- 

Ves. 273 ; North v. Strafford, 3 P. Will. 148. Where a Bill is for discov- 
ery and relief, a demurrer to the relief only, if sustained, generally de- 
feats the discovery also ; for in such a case, the discovery is incidental to 
the relief; Price v. James, 2 Bro. Ch. R. 319 ; Sutton v, Scarborough, 
9 Yes. 71, 75. But there cannot be a demurrer to the discovery only, 
and not to the relief ; for that would be to demur, not to the thing re- 
quired (the relief), but to the means by which it was to be obtained. 
Morgan v. Harris, 2 Bro. Ch. R. 123.; Waring v. Mackreth, Forrest, R. 
129; Cooper, Eq. PI. 117; Mitf. Eq. PI. by Jeremy, 110, 183-185; 
Deare v. Attorney-General, 1 Y. & Coll. 197, 205, 206. Where the 
discovery sought is not a mere incident to the relief prayed, if the demur- 
rer be to the latter only, it would seem doubtful, whether the demurrer 
would not be bad. See Hare on Discov. § 3, p. 6-8; Mitf. Eq. PI. by 
Jeremy, 110, 183, and notes; Angell v. Angell, 1 Sim. R. 83, 93. In 
order to prevent the operatiqp of the rule, that a demurrer to the relief, if 
good, is a bar to any discovery, it was formerly a practice to file a Bill at 
first for discovery only, and then, after the discovery obtained, by amend- 
ing the Bill, to try the title to relief. But this practice is now discounte- 
nanced, except in cases, where it is clear, that the proper relief is to be 
had in Equity; and then an amendment will be allowed. See Mitf. Eq. 
PI. by Jeremy, 178, note (n) ; Hare on Discov. 22-24 ; Butterworth v. 
Bailey, 15 Yes. 363 ; Whitworth v. Davis, 1 Yes. & Beam. 23 ; Lousada 
V, Templer, 2 Russ. R. 564, 665 ; Severn v. Fletcher, 5 Sim. 457 ; Fri- 
etas V. Don Santos, 1 Y. & Jerv. 577 ; Jackson v. Strong, 13 Price, 494. 

1 King V. Heming, 9 Sim. R. 59. 

2 Dcsborough v. Curlewis, 3 Younge & CoU. 175, 178. 



CH. VII.] BILLS OF DISCOVERY. 313 

tie the Court to retain the Bill for relief, if the discov- 
ery should be eflfectual ; otherwise, it will be demurra- 
ble. Thus, for exam])le, if a plaintiflf should seek to 
obtain a discovery from the defendant of a l)ond lost or 
destroyed, and also relief consequent upon the discov- 
ery, he is required to make a suggestion in his Bill, 
that without such discovery he has not evidence sufli- 
cient to maintain a suit at law ; and also to annex an 
affidavit of the loss or destruction of the l)ond ; for if 
it is not lost or destroyed, or if he has other sufficient 
evidence to establish its contents in proof, his proper 
remedy is at law ; and ibr want of such averments, 
his Bill would be demurrable.^ 

§ 314. What constitutes, in the sense of the rule, 
a prayer for relief, is a matter of some nicety; for 
there arc some kinds of ecjuitable relief, which may be 
sought by a Bill, whose main object is the discovery of 
evidence, and where the refusal of that relic^f would 
not be decisive against granting the discovery.' Lord 
Rcdesdale has said, that to administer to the ends of 
justice, without pronouncing any judgment, which may 
aflect any rights, the Courts of Equity, in many cases, 
com])el a discovery, wlii(rh may enable other Courts 
to decide on the subject.^ This suggestion, |MThaps, 
furnishes the means of defining the sort of relief, which 
is within the contemplation of the rule. The Court 
cannot pronounce any jud<>:ment on the rights of the 
parties, except U|)on a hearing of the cause. It would 
seem, therefore, to follow, that if any exercise of the 

• Milf. Eq. PJ. by Jfrvmy. I'JI. l-V*; 1 Story on K^jiiiiy Jiirisp. 
4 81-80; Walmslcy v. ThiM, I Vvs. 313,315; Wliiifif.lil r. Fuuhkii, 1 
Vet.3fh2; Anto, ^*JHH; FhhIIlv v. Iliiule, 1 l\lcn, \i. 2\\. Hut ilu* 
objeciion will lie waived by a ^oiitTal aribwcr. Ibiil. Slx* \hU\ ^ 301. 

V Hare on DiMovery, 1*J, 13. 

3 Mitf. Eq. PI. by Jeremy, ltt». 



344 EQUITY PLEADINGS. [CH. VII. 

jurisdiction of the Court is prayed, which involves the 
necessity of a hearing, and a decree or a decretal order 
on those rights, the suit is thereby rendered a suit for 
relief, and is liable to all the incidents of that proceed- 
ing. On the other hand, if the assistance, which is 
prayed in addition to the discovery, be such as the 
Court will give without a hearing of the cause, and no 
decree or decretal order be necessary on any rights, as 
no judgment on any rights is required, the rule would 
seem to be inapplicable.^ 

§ 316. This distinction may be illustrated by a few 
common examples. It is a natural, if not a necessary, 
incident to the usefulness of a Bill of Discovery, that, 
in the mean time, and until the discovery is obtained, 
the proceedings in the suit at law should be stayed ; 
for otherwise the discovery might be wholly fruitless. 
Hence, Bills of Discovery usually contain a prayer for 
an injunction, until the discovery is obtained. In one 
sense, this is a prayer for relief. But it being relief, 
which is granted upon motion, without any hearing of 
the rights or merits involved in the cause, it does not 
fall within the scope of the rule.* So, a prayer for a 
commission to examine witnesses, infirm, or abroad, 
or to perpetuate the testimony of witnesses, may be 
added to a Bill of Discovery, and does not make it a 
Bill for relief within the rule ; for in neither of these 
cases is the cause ever brought to a hearing.* So, a 
prayer for the production of deeds in Court, of which 
a discovery is sought, is not such a prayer for relief; 



^ Hare on Discov. 12 ; Ante, § 17. 

^ Hare on Discov. 14 ; Eden on Injunct. 78, 79. 

3 Hare on Discov. 12, 13 ; Noble v. Garland, 19 Ves. 376 ; King v. 
Allan, 4 Madd. R. 247 ; Thorpe v, Macaaley, 6 Madd. R. 218 ; Hall v, 
Hoddesden, 2 P. Will. 162 ; Vaughan v. Fitzgerald, 1 Sch. & Lefr. 316 ; 
Angell V. Angell, 1 Sim. R. 83, 93. See Ante, § 303. 



CH. VII.] BILLS OF DISCOVERY. 345 

for it is merely incidental to the discovery, and may be 
obtained upon motion, where the Bill is for discovery 
only.^ Nor would a prayer, that the deeds or p(i])ers 
sought to be discovered, when discovered, should be 
produced as evidence at the trial, be deemed a prayer 
for relief ; for it is a necessary part of the order of the 
Court upon Bills for discovery of deeds and papers in 
aid of a trial at law.^ 

^316. On the other hand, if a Bill of Discovery con- 
tains the formal prayer for general relief, that the [ilain- 
tiff "may have such further and other relief, as the 
circumstances of the case may recpiire, and to the 
Court may seem meet;" that would l)e construed to 
make it a Bill for relief.^ So, a prayer, in praying 
process, that the defendant may abide such order and 
decree, as the Court shall think ])roper to make, has 
been held to be a prayer for relief; but this seems 
to be (juestionable in its principle/ So, any s|>ecial 
prayer, that will reciuire the cause to be brought to a 



' Hire on Discos. 15; Parker v. Hay, 5 Madd. 65; ('ruw v. Tyirell, 
9 Madd. 408. 

• Hare on I)i«»ov. IR. 

* Cooper, Kij. PI. 5S, I^h : Hnrc on Disrov. Ifi, 17, H; Barlon, Suit 
in Eq. 55, note (I) ; Aniroll v. We»troinbe, Sim. K. 3<K The aiithori- 
tiet do not seem to lie quite consibtont on this subject. In Whituorth r. 
Gouldinp, 1 V^x, Ahridt?. II; S. <*. 2 P. Will. 5^11, the Hili was for adi.s- 
coTery, and C(>[itainp<i a prayer for irencral relief; and on demurrer to the 
relief, the f*ourt held the (h'liiurn'r hud ; lN.rau8<^ the Hill waM a mere Hill 
for discovery. Hnindnn v. Sands. *2 Vfs. jr. 511. si^'rim to rocouni?.^* the 
■ame doctrine. So dtM't* KiNlfrt^rs r. Scott, *i MoHoy. K. A'M*. Thr case 
of Roee r. Gannel, 3 Aik. i'MK is thr othrr way. Ho is Allan v. ('o|>c- 
land, A Price, K. 5'J'J ; and .Ainhury r. Jones. 1 Yuunpf% K. T.Mi ; and 
Anfrell r. Wcstcomhe. U Swn. U. 30; and Mclhsh r. Hichardt»on. 12 
Price, R. 531. 

< Rose r. Conncl, 3 Alk. 'I3U; Amhury r. Jones, I Younjyc. U. 199; 
James v. Herriutt, t( Smi. H. ft'JH. i'vntra, Anfrcll v. WestcomlN', (i Sim. 
R. 30. 8i*e Haki^r r. Hraniai, 7 Simons, R. 17 ; Schropp|>el r. Hedtield, 
5 Paige, K. *J45; Mrlniire v. Trustees of Union Collee<^« ^ Paige, R. 
949, 943. 

EQ. PL. 44 



346 EQUITY PLEADINGS. [CH. YIU 

hearing, will be deemed a prayer for relief; as, that 
the copy of a will may be decreed to be a true copy.^ 
But a prayer " to stand by and abide such order " as 
to the Court shall seem meet, without adding the word 
decree, would not be deemed a prayer for relief, but 
merely for such an order, as is consistent with the 
general scope of the case made by the Bill.* Why 
an equally liberal interpretation should not prevail, if 
the word decree be added, and yet it is obvious, that 
the party seeks no other relief, than what may proper- 
ly be given upon a mere Bill of Discovery, it is not 
very easy to say. 

^ 317. In regard to the frame of a Bill of Dis- 
covery, it may be generally stated, that it must clearly 
show, that it is brought by persons, and for objects, 
and under circumstances, entitling it to be maintained 
by the Court. One of the fundamental rules of this 
branch of Equity Jurisprudence is, that the plaintiff is 
entitled only to a discovery of what is necessary to 
maintain his own title ; as, for example, of deeds under 
which he claims. But he is not entitled to have a dis- 
covery of the title of the other party, from whom he 
seeks the discovery.* Hence it may be stated, as a 

1 See Vaughan v. Fitzgerald, 1 Sch. & Lefr. 316. 

' Baker v. Braroat, 7 Simons, R. 17. See also Schroeppel v. Redfield, 
6 Paige, R. 245 ; Mclnlire v. Trustees of Union College, 6 Paige, R. 
242, 243. 

3 Cooper, Eq. PI. 58; Mitf. Eq. PI. by Jeremy, 190, 191; 2 Story on 
Eq. Jurisp. § 1490. Mr. Wigrara, in his work on Points in the Law of 
Discovery (p. 15, 2d edit.), states the proposition thus ; ** It is the right, 
as a general rule, of a plaintiff in Equity, to exact from the defendant a 
discovery upon oath as to all matters of fact, which, being well pleaded in 
a Bill, are material to the plaintiff's case, about to come on for trial, and 
which the defendant does not by his form of pleading admit.'' He adds 
(p. 15, and p. 261, 2d edit.), ** The right of a plaintiff in Equity to the 
benefit of the defendant's oath is limited to a discovery of such material 
facta, as relate to the plaintiff's case ; and does not extend to a discovery 
of the manner, in which the defendant's case is to be exclusively estab- 
lished, or to evidence which relates exclnsively to his case." 



CH. VII.] BILLS OF DISCOVERT. 347 

general rule, that the Bill must show such a case, as 
renders the discovery material to the plaintiff in the 
Bill, to support or defend a suit.' 

^ 318. In the next place, the Bill should show, that 
the plaintiff has a title and interest, and what that 
title and interest are, in the subject-matter, resijecting 
which the discovery is sou<;;ht ; for a mere stranger 
cannot maintain a Bill for the discovery of another^s 
title.* So, the title and interest must be shown to be 
present and vested; for, where the plaintiff in his Bill 
shows only the prolmbility of a future title or interest 
upon an event, which may never happen, he has no 
right to institute any suit concerning it, either for dis- 
covery or for relief.^ But if the plaintiff shows a com- 
plete title or interest, although it is, or may be litigated, 
that will be sufficient ; for its validity cannot be ascer- 
tained, until the litigation is determined.^ 

^ 319. In the next place, the Bill must not only 
show an interest in the plaintiff in the subject-matter, 
to which the required discovery relates ; and such an 
interest as entitles him to call on the defendant for the 
discovery ; but it must also state a case, which will 
constitute a just ground for a suit or a defence at law/ 
The object of the Court in compelling a discovery is, 
to enable some other Court to decide on matters in dis- 
pute between the parties, the discovery of which is mate- 
rial. If the Bill does not show such a case, as renders 
the discovery material to support or defend a suit, it is 



> 1 Mont. Vmx. Pi. 25'J. 

■ Cooper, Eq. PI &m ; Miif. Eq. PI. by Jeremy. 154-157. 1R7. 

» Miif. Eq. PI. by Jeremy, 156, 157; SackviUc r. Ayleworib, I Vern. 
105; Ante, ^301. 

4 Mitf. £q. PI. by Jeremy, 157. 

* Mitf. £q. PI. by Jeremy, 187 ; Hare on DucoYery, 43 ; Mcfntyre v. 
MuKint, 3 John. Ch. R. 47. 



J 



348 EQUITY PLEADINGS. [CH. VII. 

plainly not a case for the interposition of the Court.* 
Therefore, where a plaintiff filed a Bill for a discoverj 
merely to support an action, which, he alleged by his 
Bill, he intended to commence in a Court of Common 
Law ; although by this allegation he brought his case 
within the jurisdiction of a Court of Equity to compel 
a discovery ; yet the Court being of opinion, that the 
case stated by the Bill was not such, as would support 
an action at law, a demurrer was allowed. For, un- 
less the plaintiff had a title to recover in an action at 
law, supposing his case to be true, he had no title to 
the assistance of a Court of Equity, to obtain from 
the confession of the defendant evidence of the truth 
of the case.* So, where, upon a Bill filed by a credi- 
tor, alleging, that he had obtained judgment against 
his debtor, and that the defendant, to deprive him of 
the benefit of his judgment, had got into his hands 
goods of the debtor under pretence of a debt due to 
himself, and prajdng a discovery of the goods, the de- 
fendant demurred ; because the plaintiff had not al- 
leged, that he had sued out execution ; and until he 
had so done, the goods were not bound by the judg- 
ment, and consequently the plaintiff had no title to the 
discovery ; and the demurrer was allowed.* 



I Mitf. Eq. PI. by Jeremy, 191, 192; Leggett v. Postley, 2 Paige, R. 
601 ; 2 Story on Eq. Jurisp. § 1497 ; Bishop of London v. Fylche, 1 Bro. 
Ch. R. 96; Selby v. Crew, 2 Anst. 504. Therefore, if it appears on the 
face of the Bill, that the plaintiff is entitled to no remedy at law, a dis- 
covery will not be granted ; for it would be purely impertinent. Rondeau 
». Wyatt, 3 Bro. Ch. R. 155; Cholmondeley v. Clinton, 1 Turn. & Russ. 
107. 

* Debbieg v. Lord Howe, in Chancery, Hilary Term, 1782, cited in 
Mitf. Eq. PI. by Jeremy, 4th edit. p. 187, note (j?) ; and in 3 Bro. Ch. R. 
155 ; Wallis v. Duke of Portland, 3 Yes. 494 ; Lord Kensington o. Man- 
sell, 13 Ves. 240 ; Ante, ^ 257, a ; Post, § 558, 659 ; Neate v. The Duke 
of Marlborough, 3 Mylne dL Craig, 407, 416, 517; Ante, § 257, a. 

3 Mitf. Eq. PI. by Jeremy, 126, 187, 188. It is laid down in Leggett 



CH. VII.] BILLS OF DISCOVERY. 349 

^ 320. The Bill must also set forth with reason- 
able certainty the title of the plaiiitill'; and if it seeks 
the discovery of deeds and accounts, it must also de- 
scribe them with reasonable certainty. Therefore (as 
we have seen), where a Bill stated generally, that 
under some deeds of settlement in the custody of the 
defendant, the plaintiflf was entitled to some estates, 
either in fee or absolutely, or as tenant for life, or in 



0. PcMtley, a PiiifTC, R. tiOl, that when a party asks the interpusition 
of a Court of Iiii}uity tu slay a proceeding: at law, cither by a temporary 
injunction or otherwise, on the {jround, that a discovery is necessary to 
aid him in his defence, he must not only show, that the facts, as to which 
a discovery is sought, are material ; but he must show afliruiatively in his 
Bill, that his right or defence cannot bo e^tablislied at law by the testi- 
mony of witnesses, or without the aid of the discovery he seeks. The 
suae doctrine is stated in Celston v. Hoyt, I John. Ch. U. 515, 518 (2 
Story on Eq. Jurisp. § 1105, note S. (*.), and Seymour v, Seymuur, 1 John. 
Ch. R. 411. Hut it is material to state, that both of thesis l:ist cases were 
Bills seeking relief, .'is well as for discovery ; an<I therefore fall within the 
principle of Russell v. Clarke's Ex'n*, 7 ('ranch, HO, which decides, that 
if a party seeks to withdraw the suit from a <'(»urtof Law to Equity, 
upon the ground (»f a discovery, that discovery must be established by the 
answer in order to entitle the Court to maintain the Hill for relief. See 
also Ijoight r. Mor^'an, 1 John. Cas. 120. i^ut this by no means estab- 
lishes the doctrine, that, if the Hill is for di:>coverY only, it is iit-cessary to 
aver, that the party cannot otherwise establish his defence at law. 'I'ben> 
dops not appear to he any such doctrine in the English Courts of Kf]uity. 
On ihc contrary, it is laid down, that a party may maintain a Hill of Dis- 
roTcry, not only when he is destitute of other evidence to establish his 
rase, hut also to niil sncli evidence, or tu render it unnecessary. See 
Harp on Discovery. 1, 110; Montairne r. Dndman, 2 Ves. 3f)h ; Wigram 
nn Ihncov. 1. 5, *J5; Hrcreton v. (tamul, 2 Atk. Sll ; Finch v. Finch, 3 
Ves. Vi'i. I^ird Redesdale lays it down, that *' the plaintifl'may rctpiiro 
this discovery, either l>ecausf' he cannot prove the facts, or in aid of proof 
and to avoid expense.** Mitf. Eq. PI. by Jeremy. 307. Mr. (.'ban- 
cellor Walworth, in March o. Davison. Paige, R. 5H0, expressly over- 
ruled the doctrine. ^%hich he was supposed by the reporter to ha\e held 
in liCggeU V. Postlry. v» Paige, R. fiOl ; Ante, § 311 ; Post, -} 3vJI, a, 
H45. In Karl of (;ienuall V. Fraz«T. \i Hare. R. !H», 105, Mr. Vice- 
('hancellor Wiurani sai<l ; *'The plaintifl* is in this (.'ourt entilleil to an 
ansm-er from the defendant, not only in res|N*ct to facts, which he cannot 
otherwise prove; hut also as to facts, thf* admission of which ^%itl relievo 
him from the necessity of adducing proof from other sources." 



360 EQUITY PLEADINGS. [CH. VII. 

tail in possession, or in some other manner, as by the 
deeds in the custody or power of the defendant would 
appear, and prayed a discovery thereof; upon demur- 
rer, the Bill was held bad for vagueness and uncertain- 
ty, and was to be treated as a mere fishing Bill.^ 

^ 321. The Bill must also state, that the discovery 
is asked for the purpose of some suit brought, or in- 
tended to be brought; for otherwise it will not be 
maintained, as Courts of Equity do not grant a dis- 
covery to gratify mere curiosity, but to aid some legal 
proceeding.^ It must also set forth with reasonable 
certainty the nature of the suit, which is brought, or 
if not brought, the nature of the claim or right, to 
support which the suit is intended to be brought, and 
against whom, in particular, it is to be brought. If, 
for example, a claim for duties is made, it ought to be 
stated how, and in what right, they are claimed. Lord 
Eldon has spoken in an emphatic manner upon this 
subject. "That, where the Bill" (said he) "avers, 
that an action is brought, or, where the necessary 
effect in law of the case stated by the Bill appears to 
be, that the plaintiff has a right to bring an action, he 
has a right to a discovery, to aid that action, so alleged 
to be brought, or which he appears to have a right 
and an intention to bring, cannot be disputed. But 
it has never yet been, nor can it be, laid down, that 
you can file a Bill, not venturing to state, who are the 
persons, against whom the action is to be brought ; not 
stating such circumstances as may enable the Court, 
which must be taken to know the law, and therefore 
the liabilities of the defendants, to judge; but stating 
circumstances ; and averring, that you have a right to 



1 Ryves v. Ryves, 3 Ves. jr. 343 ; Ante, § 245. 
3 Cardale v. Watkins, 5 Madd. 18. 



CB. VII.] BILLS OF DISCOVERY. 351 

an action against the defendants, or some of them. 
That of necessity admits, that some of the defendants 
may be only witnesses ; and against them there is no 
right to file such a Bill. The fraud (in this case) is 
not charged as against the third partner. If you had 
said, that by reason of the combination it was so man- 
aged, that you could not bring an action, and there- 
fore there ought to be an account of the fees in this 
Court, it might have been so shaped. So, you might 
allege, perhaps, that the person entering goods of an 
alien in the name of a natural subject, would be liable 
at law to pay the alien duty: or you might state, that 
an indindual enters goods in his own name, knowing 
them to be the goods of an alien ; and who therefore is 
liable to an account. But you must state, who the 
individual is; for you have no right to a discovery 
except against the person, against whom you aver, 
that you mean to bring the action."' 

^ 322. In regard to the nature of the suit also, the 
ground is equally clear; for there are certain sorts of 
suits, in res|)ect to which a Court of Equity will not 
interfere, or give aid by way of discovery ; as, for ex- 
ample, a suit for a penalty, or a forfeiture, or in aid of 
a writ of mandamuSy or of a criminal prosecution.' 
Where the Bill is brought before any action, it is usual 
to aver in the Bill, that the discovery of the facts is 
necessary to enable the party to commence his suit 
right.' 

§ 323. In the next place, the Bill must generally 
show, that the defendant has some interest in the sub- 



> Mayor of Iiondon v. I-cvy, ft Vefi. 398. 

*8 Story on Ki\. Jiixisip. <§ 141M ; MonUjruc r. Dudmau, 2 Vrn. 398; 
LeggeU r. PuBtley, H Vsi^c, 5ini ; Poht. ^ 653. 

3 Moodelay v. Morton, 1 Bro. Ch. K. 170. 471 ; S. C. S2 Dick. 052. Sec 
Hue on DiacoT. 51, 110. 



362 EQUITlf PLEADINGS. [CH. Vil. 

ject-matter of the discovery ; for, if he is a mere wit- 
ness, the Bill cannot ordinarily be maintained against 
him.^ If the Bill alleges, that the defendant has a 
claim to such an interest, and states it, that will be 
sufficient to prevent a demurrer, although in fact the 
defendant has no interest. But, then, the plaintiff 
may avail himself of the objection in another form.* 

^ 324. And it will not in all cases be sufficient to 
show by the Bill, that both the plaintiff and defendant 
have an interest in the subject-matter of the suit. But, 
if the right to discovery arises from any privity of title 
between tfiem, there must be an averment in the Bill 
of that privity, and what its true nature and character 
are, with reasonable certainty.^ 

^ 324, a. In the next place, it must be shown, upon 
the face of the Bill, that the discovery is material to 
the defence at law of the party, seeking the discovery, 
and how and in what manner it is material.^ But it i s 
not necessary to aver, that the discovery is absolutely 
necessary or indispensable to that defence. It vnll 
be sufficient to state and show, that it is material evi- 
dence.* Thus, for example, it is not necessary to al- 
lege in the Bill, that the plaintiff has no other witness 
or evidence to establish at law the facts of which 
the discovery is sought ; for he is entitled to it, if it 
be merely cumulative evidence of material facts.® It 
would be otherwise, if the Bill should not only ask dis- 



1 Mayor of London v. Levy, 8 Ves. 404, 405; Dineley v. Dineley, 2 
Atk.^94; Whitworlht;. Davis, 1 Ves. & B. 550. 

2 Milf. E^. PI. by Jeremy, 181 ; 2 Story on Eq. Jurisp. § 1499. 

3 Mitf. Eq. PI. by Jeremy, 189, 190. 

^ Lane v. Stebbins, 9 Paige, R. 692 ; March v. Davison, 9 Paige, R. 
580 ; Post, § 845 ; Many «. Beekman Iron Company, 9 Paige, R. 188 ; 
Ante, ^ 319 and note ; Mitf. Eq. PI. by Jeremy, 307. 

5 Ibid. 

e Ibid. 



CH. VII.] BILLS OF DISCOVERT. 353 

covcry, but should ask relief in Equity ; for in the lat- 
ter case the Bill would seek to withdraw the whole 
jurisdiction from the proper Court of Law, and to give 
it to the Court of Equity.* 

^ 325. In the next place, the Bill should set forth 
in particular the matters, to which the discovery is 
sought ; for the other party is not bound to make 
answer to vague and loose surmises. On this account, 
where a Bill of Discovery was brought by an execu- 
trix, stating generally, that a demand had been made 
upon her, as executrix, by the defendant, which she 
had refused to pay, and he had sued her therefor ; and 
that the executrix knew nothing of the demand of her 
own knowledge ; but Ixjlieved it to be unjust, because 
the defendant took no measures to liquidate it in the 
testator's lifetime, and did not produce any vouchers ; 
and that she could not, without a discovery of all the 
facts, safely proceed to a trial at law in the suit ; and 
prayed a discovery ; it was held, that the Bill was bad, 
and was a mere fishing Bill, amounting only to a 
statement, that the executrix was sued at law, and 
did not show for what, and therefore asked a discovery 
beforehand, although she had reason to conclude, that 
the suit was u{X)n some groundless pretence. It set 
forth no facts, material to a defence at law, and mere- 
ly sought a discovery of the grounds of the suit at 
law.' 



I Ibid. 

» Newkirk v. Willptt, 2 Cain. Cm. in Krr. 2%. See 'a\m) Frictas r. 
Don Santos, 1 Y. 6l Jrrv. 577. 



EQ. PI.. 15 



364 EQUITT PLEADINGS. [CH. VIII; 



CHAPTER VIII. 



BILLS NOT ORIGINAL. 



^ 326. Bills not original, as we have seen, pre- 
suppose a suit to have been already commenced and 
litigated between the same parties in regard to the 
same subject-matter, and they are properly of two 
classes. (1.) Such as are an addition to, or a con- 
tinuance, or a dependency, of the original Bill.* Or 
(2.) Such as are brought for the purpose of cross liti- 
gation, or of controverting, or suspending, or reversing 
some decree or order of the Court, or of carrying it 
. into execution.^ The former class furnishes the means 
of supplying the defects of a suit, of continuing it, if 
abated, and of obtaining the benefit of it. These 
means are : ( 1.) By a Supplemental Bill. (2.) By 
an original Bill, in the nature of a Supplemental Bill. 
(3.) By a Bill of Revivor. (4.) By an original Bill 
in the nature of a Bill of Revivor. (5.) By a Bill 
of Revivor and Supplement. The second class in- 
cludes: (1.) A Cross Bill. (2.) A Bill of Review. 
(3.) A Bill to impeach a decree upon the ground of 
fraud. (4.) A Bill to suspend the operation of a de- 
cree. (5.) A Bill to carry a former decree into exe- 
cution. (6.) A Bill partaking in some measure of 
the character of some one or more of both of these 
classes of Bills ; such as a Bill in the nature of a Sup- 
plemental Bill, or in the nature of a Bill of Revivor, 



1 Ante, § 16, 20. 

8 Ante, § 16, 20 ; Post, § 332-388. 



CH. VIU.] BILLS NOT ORIGINAL. 355 

or in the nature of a Bill of Review, and other of a 
kindred character.* It may be proper to give a sketch 
of the frame and objects of each of these classes and 
varieties. 

§ 327. Before, however, entering upon the consider- 
ation of these diilerent sorts of Bills, it may be useful 
to make some preliminary statements, which will serve 
more fully to unfold their nature and character ; and 
in this, and, indeed, in all the subsequent explanations 
of these varieties of Bills, recourse must be almost ex- 
clusively had to the admirable treatise of Lord Redes- 
dale.' 

§ 328. A suit may l)e defective in its original struc- 
ture, either from the want of a full statement of the 
material facts, or from the want of proper parties, or 
from the want of asking suitable discoveries, or from 
other like defects, where no event has occurn^d sub- 
sequent to the institution of the suit, anectin<^ the 
rights or interests of the parties. In such a case, as 
we shall presently see, the defect may be cured either 
by an amendment of the Bill, or by a supplemental 
Bill, under the circumstances, which will be hereafter 
stated.' On the other hand, a suit may Ix^ perfect in 
its institution ; and yet, by some event, subsecjuent 
to the filing of the original Bill, it may l)ecome (le- 
fectite^ so that no proceeding can l)e had, either as to 



I Ante, § 20, SI ; Pobt, $ 3HH- 13*2. 

* A very Ivgc ftortion of the following remarks, as to these diflbrcnt 
kinds of Bills, is bom i wed froin I^rd Uede8<l ale's Treatise, with htth; 
more than an ciorasional vcrhal alteration. I have not the presumption to 
■uppoac, that upon so roniplicated a subjeet I could add any thiu>r to tho 
remarks of this i;reat Master in K<<}uity, u|M>n whose work l\\v liiuhcst 
eulofpy was pronounced by Tjord KIdon. in Moyd o. Johnes, n Ves. 54. 
Occasionally I have copied from Mr. f'oupcr, where his explanations were 
more full and satisfactory- 

3 Milf. Eq. PI. by Jeremy, 55, 61 ; Post, ^ 333-335. 



366 £QniTT PLEADINGS. [gH. VIII. 

the whole, or as to some part thereof, with effect ; or 
it may become abated^ so that there can be no pro- 
ceeding at all, either as to the whole, or as to a part 
thereof.^ The first is the case, when, although the par- 
ties to the suit remain before the Court, some event, 
subsequent to the institution of the suit, has either made 
such a change in the interest of those parties, or given 
to some other person such an interest in the matters 
in litigation, that the proceedings, as they stand, can- 
not have their full effect,^ The other is the case, 
when by some subsequent event there is no person 
before the Court, by whom, or against whom, the suit 
in the whole or in part can be prosecuted.^ 

^ 329. It is not very accurately ascertained in the 
books of practice, or in the reports, in what cases a 
suit becomes defective without being absolutely abated ; 
and in what cases it abates, as well as becomes defec- 
tive.* But, upon the whole, it may be coUected, that 
if, by any means, any interest of a party to the suit in 
the matter in litigation becomes vested in another, the 
proceedings are rendered defective, in proportion as 
that interest affects the suit ; so that, although the 
parties to the suit may remain as before, yet the end 
of the suit cannot be obtained.* Thus, for example, 
if the party become bankrupt pending the suit, then, 
according to the practice of Chancery, the suit will be 
held to be defective ; but the bankruptcy does not 
cause an abatement.^ And if such a change of interest 
is occasioned by, or is the consequence of, the death 



I Mitf. Eq. PI. by Jeremy, 56; Post, § 334, 337. 
» Ibid. 3 Ibid. 

* Mitf. Eq. PI. by Jeremy, 56, 57, and the cases there cited ; Gilb. For. 
Rom. 176 ; Post, ^ 349 and note. 

5 Ibid. 

6 Lee V. Lee, 1 Hare, R. 617, 621 ; Post, ^ 349 and note. 



CH. VIII.] BILLS NOT ORIGINAL. 357 

of a party, whose interest is not determined by his 
deatli, or by the marriage of a female plaintifl*, the 
proceedings become likewise abated or discontinued, 
either in part, or in the whole. For, as far as the 
interest of a party dying extends, there is no longer 
any person l)efore the Court, by whom or against 
whom the suit can be prosecuted ; and a married 
woman is incapable by herself of prosecuting a suit.^ 

^ 330. There is the same want of accuracy in the 
books in ascertaining the manner, in which the benefit 
of a suit may be obtained, after it has become defec- 
tive, or abated, by an event subse(]uent to its institu- 
tion, as there is in the distinction between the cases, 
where a suit becomes defective merely, and where it 
likewise abates.' It seems, however, clear, that if any 
property or right in litigation, vested in a plaintiff, 
is transmitted to another, the person, to whom it is 
transmitted, is entitled to supply the defects of the 
suit, if it has liecome defective merely ; and to con- 
tinue it, or at least to have the benefit of it, if it is 
abated.' It seems also clear, that if any property or 
right, before vested in a defendant, Ixxoines trans- 
mitted to another person, the plaintiff is entitled to 
render the suit |)erfect, if it has liecome defective, or 
to continue it, if it is abated, against the person, to 
wliom that projKTty or right is transmitted.^ 

^331. With these explanations, let us now enter 
upon the examination of the varieties of Bills aln*ady 
enumerated, whose object it is to meet and to over- 
come these difliculties, arising from a suites becoming 



> Mitf. Eq. PI. by Jeremy. 5A, 57, and tlie canci there cited ; (>ilb. For. 
Ron. 176 ; Post, $ 310 and note. 

> Mitf. Kf|. PI. by Jeremy, HO, 61, and the euies there cited ; Post, 
$339-349. 

3 Ibid. * Ibid. 



368 EQUITY PLEADINGS. [CH. Vlll. 

defective, or from its becoming abated, or from both. 
When a suit is abated, it cannot be proceeded in, until 
there is, (according to the technical phrase,) a revivor 
of it. When it is merely defective, it may be proceeded 
in without such a technical revivor, upon the mere 
supply of the defective facts, or defective parties.* 

^ 332. And, first, of a supplemental Bill, which is 
merely an addition to the original Bill, in order to sup- 
ply some defect in its original frame or structure.^ In 
many cases, an imperfection in the frame of the orig- 
inal Bill, may be remedied by an amendment.' Gen- 
erally, a mistake in the Bill in the statement of a fact 
should be corrected by an amendment, and not by a 
right statement of the fact in a supplemental Bill.* 
But the imperfections of a Bill may remain undiscov- 
ered, while the proceedings are in such a state, that 
an amendment can be permitted according to the 
practice, of the Court ; * or it may be of such a nature, 
having occurred after the suit is brought, as may not 
properly be the subject of an amendment.^ By the 
practice of the Court, no amendment is generally 
allowable, after the parties are at issue upon the points 

1 See Randall v. Mumford, 18 Ves. 427, 428 ; Lloyd v. Johnes, 9 Ves. 
64, 55 ; Harrison v. Ridley, Com. R. 589 ; Anon. 1 Atk. 88 ; Russell v. 
Sharpe, 1 Ves. Sc B. 500. In all these cases, when the suit has become 
abated, as well as defective, the Bill is commonly termed a supplemental 
Bill in the nature of a Bill of revivor, as it has the effect of a Bill of revi- 
vor in continuing the suit. Mitf. Eq. PI. by Jeremy, 68, 69. 

8 Ante, § 20; Mitf. Eq. PI. by Jeremy, 34, 55; Hinde's Pract. 42-45. 

3 Wyatt, Pr. Reg. 88 ; Hinde's Pract. 42. 

* Strickland r. Strickland, 12 Simons, R. 253. 

5 Mitf. Eq. PI. by Jeremy, 55 ; Rowe v. Wood, 1 Jac. & Walk. 339 ; 
Hinde's Piact. 42, 43. 

^ If it appears upon the face of a supplemental Bill, that all the matters 
alleged therein arose previous to the commencement of the suit, and 
might have been inserted by way of amendment in the original Bill, the 
defendant may demur to the supplemental Bill. Stafford v. Hewlett, 1 
Paige, R. 200. 



CH. viik] supplemental bills. 359 

of the original Bill, and witnesses have been exam- 
ined.^ Nor is it generally allowable to introduce into 
the Bill, by amendment, any matter, which has hap- 
pened since the filing of the Bill.' In such cases, a 
supplemental Bill is the appropriate remedy.' And 
such a supplemental Bill may not only be for the pur- 
pose of putting in issue new matter, which may vary 
the relief prayed in the original Bill ; but also for the 
purpose of putting in issue matter, which may prove 
the plaintiff's right to the relief, originally prayed.^ 



> Milf. Eq. PI. by JeromVt 55, 325 ; 3 Wooddcs. Ix»ct. 55, p. 371 ; 
Wyatt, Pr. Reg. 88, 00; Cooper, Eq. PI. 333; Goodwin v. Goodwin, 3 
Atk. 370; Jones v. Jones, 3 Atk. 110, 111 ; iStafl'ord v. Ilowkit, 1 Paige, 
R. 200. Mr. Wooddeson savs, that an amendment is not allowtid alter 
bremking open the seals of the depositions, which is called pass»in^ ])uhli- 
ettion (3 Wooddes. Lect. 374). But the general rule is, as stated by 
Lord Rcdrsdalc. However, in special cases, an amendment will he al- 
lowed after witnesses have been examined In'fore piil>hcati()n, and even 
after publication, if no witnesses have been examined. See Mitf. Kq. PI. 
by Jeremy, 55 and note, 325 and note (r). See also Wright v. Howard, 
6 Madd. R. 106. In Colclough o. Kvans, 4 Simons, U. 70, the Vice- 
Chincellor said, that the rule (before the late orders) was not to allow an 
amendment without special leave, aAer the en use is at i.ssue. The same 
rnlo is laid down in noti' (//i) to Mitf. Eq. PI. by Jeremy, 55, 5<), where 
it ia added, that after the cauw} is at issue the Court will nut ^'ive the 
plaintifT leave to amend, unlfss he shows not only the materiality of the 
proposed alteration, but also that he wa.s not in a condition to have made 
it earlier. The objection of this qualification is to prt'vent drlays. Sec 
also to the same p«)int, liongman r. ('olliford, 3 Anst. H07 ; Kilcourny v. 
Lee, 4 Madd. R. 21*2, and th>> other cases cited in Mitf. }\a\, PL by Jere- 
my, 55, 5f», note (m). Sec: Post, $ ^^hT* and noti'. 

« Cooper, K|. PI. 333 ; Candler ». Peilit, 1 Paijjr, R. ir,5 ; Urown v. 
Higdon, 1 Atk. R. 8U1 : Post, § 333. When a plaintilf amendH his 
Dill by the insertion of matters, which have fjccurred ninrc thr libn^; »f 
tbe original Dill, the defetidaut, instr:u! «»f pleading or demurrini: to thi^ 
amended Dill on that ground, may, by answer to the ammdrd Hill, t'hiin 
the same benefit, tb&t he would have been rniiih-d to, if ho hail pb-adi'd 
or demurred. 9 .T)anitll. Ch. Pract. ^05. See Millijran ». Mitrhell, I 
Mylne dc. Crai^:{:{. 

' Wray ». Ilutchinscm, 5 Mylne & Keen, R. v535 ; Cromplon r. Womb- 
well, 4 Sim. )u (;i>H : Darfuld v. Ktlly, 4 Russ. R. 355; PnM, ^^ 35:!. 

4 Crompl«n r. Wombwell, 4 Sim. R. ti*J» ; Post. $ 335, 337, 3U3. 41*2, 
4l3,421-4{3. 



/ 
I 



360 EQUITT PLEADINGS. [CH. VIII. 

Whenever a supplemental Bill is not a supplemental 
suit, but only introduces supplementary matter, tho- 
whole record constitutes but one cause ; and one re- 
plication and one cause are to be set down for the 
hearing.^ 

§ 333. A supplemental Bill (strictly so called) is, in 
the first place, proper, whenever the imperfection in the 
original Bill arises from the omission of some material 
fact, which existed before the filing of the Bill, but the 
time has passed, in which it can be introduced into 
the Bill by an amendment.^ This may arise either 
from the importance of the fact not being understood 
in the preceding stages of the cause, and therefore not 
being put in issue ; or from the fact itself not having 
come to the knowledge of the party, until after the 
Bill was filed. In either case, the filing of a supple- 
mental Bill is not always a matter of course ; but 
sometimes special leave must be asked of the Court ; 
as, for example, when it seeks to change the original 
structure of the Bill, and to introduce a new and dif- 
ferent case.' It may be added, that a supplemental 

^ Catton V. Carlisle, 5 Madd. R. 427. See Greenwood v, Atkinson, 5 
Sim. R. 628. 

3 Mitf. Eq. PI. by Jeremy, 65, 61, 325 ; Wyatt, Pr. Reg. 88, 89; 
Hinde's Pracl. 42, 43, C ; Ante, § 332. 

3 Colclough V. Evans, 4 Sim. R. 76; Jones v. Jones, 3 Atk. 110; 
Crompton v, Wombwell, 4 Sim. R. 628. It is not of course, in many 
other cases, to allow a supplemental Bill to be filed at any time. On the 
contrary, the plaintiff must show, that he could not have availed himself 
of the opportunity of introducing the new facts at any antecedent stage 
of the cause by way of amendment ; or, that they were of a nature not 
proper to be introduced by an amendment ; as, for example, events, which 
had occurred since the filing of the Bill. Therefore, where a supple- 
mental Bill was filed after the hearing of the original Bill, stating addi- 
tional facts, which arose, and were known to the plaintiff, before he filed 
his original Bill, and praying, that other matters might be taken into the 
account ordered to be taken before the Master in the caji^ ; the Court 
held, that the Bill was demurrable, and that it came in too liAte a stage of 

i 






CH. VIII.] SUPPLEMENTAL BILLS. 361 

Bill will not be pormitted to 1m; filed, whenever the 
same end may be obtained by an amendment.^ 



the proceeding. The plain tiflf should either have amended his Bill on the 
defendant's answering it, or at least he should have applied to the ('ourt 
for leave to amend, or to file a 8up])lomental Bill in an earlier static of the 
proccedinffs. Swan v. Swan, 8 Price, U. 518, .Vja ; Gilh. Fdt. Kom. 
100; Colclou^h V. Evans, 4 Sim. R. 76 ; Dias o. Merle, 4 Paige, K. 259. 
But, although the party has not, under circumt«tanccs of this sort, a right 
to file a supplemental Bill ; yet the Tourt will sometimes n f/oro motu 
direct such a Bill to be filed, if, upon the hearinfTi the justice of the case, 
ia iu own opinion, rcquin's it to be done. Mutter v. Thauvel, 5 Huss. 
U. 42. Sec Wood v. Mann, 2 Sumuor, H. 31<i. Where a suppUfmental 
Bill is brought after publication in the orii:;inal cause, witnesses cannot 
he examined to any matter, which was in issue, and not pntvcd in the 
original cause. And if such proofs are taken, they will not be allowed to 
be read. Hiode, Ch. Pract. 45; Bagnal v. Ba^jnal, Vin. .Vl)ri(ltj. Chan- 
cery, 439, pi. 8; Cockburnc v. llussoy, 1 Bidp. Par. <*. 501. In (Gilbert's 
For. Rom. 108, 109, the Chancery Practice on this subject is shown to 
have bad its origin in the Civil Law. His remarks are also important to 
the more full exiuisition of the rea.sons and restrictions of xhv. Chanecry 
Prariice. '* Acconliiiij to the f'ivil Law,*' says he, ** the ]>l:iinlitr, by 
leave of the i*ourt, micrht add any now {Hjsilion licfore replication ; for the 
replication was tUv contestation of the answer ; and tlierefon; after the 
answer was cimtfi^tcd, there could be no positions, but they went on to 
their prcMifs. But, if any new matter was di.^^covere*! after replication, 
they might, by leave of the Court, file a supplemental Bill, touching any 
matter of furt, that wa:* diix^overed afltT such n'plieation ; for the »u]i]ilo- 
mental Bill was in the nature of a new cause, which mi^'bt l>e brought, 
by leave of the Court, after the rnnt'sttntto littx in the former eau.se ; and 
the Court mipht lengthen the time f<»r publication, after such supple- 
mental Bill and answer came in ; because the prolongation of the proba- 
tory term was very much in the breiuit of the Court. But, if the i^upple- 
roental Rill he moved for after publication, the Court never gives them 
leave to examine any tbint;, that was in issue in the former cause, by rea- 
■on of the manift^st danger of sulMirnation «if perjury, where they h:iv(.> a 
sight of the examinations of the witncKsi's. But, f«)r matter of account, 
there may be a supjilemental Bill after publication, iK'cause they txamine 
to such matters of account before the Ma.sU^r or deputy after pul)hcaiion. 

• Mitf. Kit]. PI. by Jeremy, <••». It is not any objection to a sujiple- 
menUl Bill, which, by thf fomur practice of the C«»url, was ncrt shury in 
order to obtain the object, that the same pur|iOHe may now bo attaim-d by 
a petition; for this only gives the plainliir an cliM'tion, and d«N'K not de- 
prive him i»f the nuht to file a supplemental Bill. Davii's r. Williams, 
I Sin. R. 5 ; Semple v. Price, 10 Sim. R. *238. 
EQ. PI.. \6 



362 EQUITY PLEADINGS. [CH. Vlli. 

^ 334, A supplemental Bill may also be proper, in 
order to bring before the Court some party, who is a 
necessary party to the proceedings, and who has been 
omitted to be introduced at the stage of the cause, in 
which an amendment for this purpose may be made.^ 
In such a case, the original defendants need not be 
made parties to the supplemental Bill, unless they 
have an interest in the supplemental matter, or may 
be affected by the interest of the new party .^ 

^ 335, Lord Redesdale, in speaking upon the sub- 
ject of the necessity of supplemental Bills, has re- 
marked ; " This is particularly the case, where, after 
the Court has decided upon the suit as framed, it ap- 
pears necessary to bring some other matter before the 
Court to obtain the full effect of the decision ; or, be- 
fore a decision has been obtained, but after the parties 
are at issue upon the points in the original Bill, and 
witnesses have been examined (in which case, the 
practice of the Court will not generally permit an 
amendment of the original Bill), some other point ap- 
pears necessary to be made, or some additional dis- 
covery is found requisite."* Thus, for example, if new 
charges are required to be made, in order to obtain a 

And this is from the necessity of the thing, because the charge' or dis- 
charge must be made up privately before the Master or deputy, and there- 
fore they being in charge and discharge, the particulars of which must be 
proved, such accounts being now kept by books or notes, and formerly 
by scores or tallies one against another. And therefore a supplemental 
Bill in matters of account is seldom refused. So, likewise, a supplemental 
Bill may be for any fact discovered after publication passed, that was not 
in issue in the same cause, and where such fact might vary the decree. 
But, after the decree is pronounced and enrolled, it must be by Bill of 
review and reversal." 

1 Mitf. Eq. PI. by Jeremy, 61, 62. 

3 Bignall v. Atkins, 6 Madd. R. 369 ; Ensworth v. Lambert, 4 John. 
Ch. R. 605; Jones v. Jones, 3 Atk. 217 ; Holdsworth v. Holdsworth, 2 
Dick. R. 799. 

3 Mitf. Eq. PI. by Jeremy, 56, 66, and the cases there cited. 



CH. VIII.] SUPPLEMENTAL BILLS. 363 

further discovery, or a material fact is reciuired to be 
put in issue, which was not in the cause lieforo, such 
as a charge of fraud, or a new title, the object cannot 
be obtained but by a supplemental Bill.^ So, new par- 
tics, when necessary, may be added by a suppleniental 
Bill, where the proceedings are in a state, in which 
the object cannot l)e obtained in any other way.* 

§ 33G. In the next place, when new events or new 
matters have occurred since the filing of the Bill, a 
supplemental Bill is, in many cases, the pro|)er mode 
of bringing them before the Court ; for, gencirally, such 
facts cannot be introduced by way of amendment to 
the Bill.' But, here, we are to understand, that such 
new events, or new matters, do not change the rights 
or interests of the parties lK*fore the Court (for then, 
properly speaking, the Bill is not simply a sup])lemen- 
tal Bill), but they merely refer to and supi)ort the 
rights and inten;sts already in the Bill. A supple- 
mental Bill may also be brought, not only to insist 
upon the relief already prayed for in the original Bill ; 



' Jones r. Jones, 3 Atk. 110 : (niodi^iii v. (ioodwin. 3 Atk. 370 ; Mitf. 
Kq PI. by Jfrciny. ♦■»'•»; Cooprr, K.i. Pi. 73, 71; (Jilh. F«»r. Horn. lOH, 
109; .Staflbni v. lioulrtt, 1 P:iii:i?, U. ^00. 

* Jones V. Jones, 3 Atk. 110, and tin; ra»u>8 before eited. 

5 CoopiT, V^\, PI. 71 ; Mitf. Kij. PI. Iiy Jrroiiiy, (U, note (f ) ; Hind<>'s 
Ch. Pracl. I'J. 13; 3 W»oddrs. l^rt. 33. p. 37ri ; (liib. For. Honi. UK); 
Crompton ». WuniliWcIL 1 Sim. H. i'rJf*; \Vy:itt, Pr. Itrir- ^^, ^** ; Uinixr 
9. Skipwitli.*J Ch. U. 11-J; HarritM v. Krily. 1 Hum. H. 3.V»; ('nnilcaf 
V. Queen, 1 Peters. U. IIH; ('andjir ». Pntit, I P.iiL'i', K. Hl^; Siuflord r. 
HowIpU, I Paijre, H. \i\H\. \n Crompiiui r. Woinbwill, 1 Sim. J{. «i>H, 
the Vire-('lianr«'llur naid ; ** It Iin.** iteen admitted, that wh« n a cause in in 
such a state, that the Hill cannot he amended, a ftiipidenienial Bill may 
be filed. Mr. Pr|H*yN thinks, thnt that raimot lie done rxrrpt uiitMi the 
new matter uill \ary the rclii-t' prayed hy the ori<?inaI Uiil. Hiit that i.s 
not the only ea.si.', in whifh mh'Ii a pnireedinj; niay be taken ; for the new 
matter to be introducfd may fith«'r lie such, an uill vary the nlit-f prayed, 
or such, as will tend to prove the plaintiff's rifrht to that rehff.'* Post, 
4 3A3 ; Pinkua o. Peters, 5 Bcavan, H. ;!53. 



364 EQUITY PLEADINGS. [CH. VllU 

but upon other relief, where facts, which have since oc- 
curred, may require it. Thus, if pending a Bill to re- 
strain proceedings at law upon a bill of exchange, the 
holder should obtain a judgment in the suit at law, the 
plaintiff in Equity may file a supplemental Bill, stating 
the facts, and praying for repayment and an indemnity.^ 
§ 337. In regard to supplemental Bills, if they are 
brought after publication in the original cause, to bring 
before the Court facts and circumstances, which have 
since occurred, they must be such facts and circum- 
stances, as are material and beneficial to the merits 
of the original cause, and not merely such as bear as 
evidence upon the facts in issue in the original cause. 
For, if the new facts and circumstances are relied on 
as evidence only, to establish the facts in issue in the 
original cause, they should not be brought forward by 
a sup[demental Bill, for they are not properly supple- 
mental matter. But they should be brought forward in 
another form, upon an application to the Court to take 
the examination of the witnesses, or, if discovery is 
required, by filing a Bill of Discovery for the purpose.* 



1 Pinkus V. Peters, 5 Beavan, R. 253. 

2 Milner v. Hare wood, 17 Ves. 145, 148, 149. This seems to be the 
result of Lord Eldon's reasoning in this case, although the language is 
somewhat indeterminate. On this occasion his Lordship said ; ^' This is 
a case of the first impression. Suppose, after a Bill filed, the plaintiff 
and defendant met ; and the defendant expressly stated circumstances, as 
facts ; or that the plaintiff had such a title ; and that no other person was 
present : although that happened after the Bill filed, there must be some 
mode of establishing the fact; and liberty to file a Bill of Discovery, with 
a view to obtain an admission from the defendant. Suppose a witness 
had been present, and the defendant, by answer, denies the conversation : 
the plaintiff must in some way have the benefit of that evidence. Yet I 
do not recollect an instance, where the discovery of a circumstance, that 
took place after the replication, as in this case, was considered so mate- 
rial as to furnish any information with regard to the mode of obtaining 
that benefit.'' Afterwards, when he pronounced his final judgment upon 
the two points stated in the argument, viz. : (1.) That the matter stated 



CiL Vlll.] SUPPLEMENTAL BILLS. 365 

^ 337, a. Hitherto we have chiefly considered sup- 
plemental Bills on the part of the plaintitV. But they 
may also be hrou^^ht on beiialf of the defendant in the 
suit. Where the inatt(;r is newly discovered evidence 
on the |iart of the defendant, after the cause is at issue, 
or after publication is |)assed, or even after a hearin<r 
or decree, the defendant may, by a i>etition to file a 
supplemental Bill, obtain relief, and an order allowin*; 
him to introduce the* new evidence, either l)y putting 
the new matter at issue, or by enlar«^ing publication, or 
by a rehearinj^, as tin; particular stai«:e of the cause, at 
which the discovery is made, may require.' 

^ 338. In the next place, a supplemental Bill may 
also be filed, as well after, as before a decree ; and the 
Bill, if after a decree, may be, either in aid of tlu^ de- 
cree, that it may l)e carried fully into execution ; or 
that proper directions may be given ui)on some matter 
omitted in the original Bill, or not put in issue by it, 
or by the defence made to it ; or to bring forward par- 
tics before the Court ; or it may l)e used to impeach 



was DOt proper for a supplcmrntal nill. (2.) If it wat« proprr, ihat it was 
not material, he added ; '* Thrro is no recollection of a siipploinental Hill 
of this kind; and, if a new practice is to be settled, the 8tnm{r inclination 
of my opinion is, that, when the particular case arises , where citlnT cun- 
venation, or admission of the defendant, becomes material aAer answer 
or replication; or, as in this instance, after examination of witiif^iscs in 
the original cause ; or, if a new fact happi'ns after publication, which it is 
m«teriil to have U'forc the r'r>urt in i'vificnr«*, when the original cause is 
heard; it is much better, that the exaniination of witnesses, if n'luired, 
should be obtained upon a special application for the opportunity of ex- 
amining, and that th«^ depositions may be read at the hearinu ; or, if 
diacovery is re<]uirp<l, that the ]»:iriy should file a Hill for that |iur|M)so 
merely; and, if relief is re«iuired, that the answer, coniprebiiitliiip the 
discovery, should lie read at the hearinjr of the uri(;inal cause.** Ante, 
$ M5, a; Pust, ^ a.Vi. 

' Baker and Wifi^ v. Whitinir, Circuit r«»urt, Maine, May '!'» rni. 1^10; 
Barrintrton v. O'Brien, v! Ball & Ii«:iit. lio ; Kiamlish r. Kaiilev. v> Atk. 
R. 177; c;ould r. Taiimd. J Atk. H. 533; Ante, ^ 33-J, ra'i : Post, 

4 3ti3, 1 la, 1 13, 1'Ji > rj3. Kio. 



366 EQUITY PLEADINGS. [CH. VIII. 

the decree, which is the peculiar case of a supple- 
mental Bill, in the nature of a Bill of Review, of which 
we shall treat hereafter.^ But where a supplemental 
Bill is brought in aid of a decree, it is merely to carry 
out and to give fuller effect to that decree, and not to 
obtain relief of a different kind on a different principle ; 
the latter being the province of a supplementary Bill 
in the nature of a Bill of Review, which cannot be filed 
without the leave of the Court.* 

^ 338, a. But, in whatever manner a supplemental 
Bill is brought forward, if it is for new discovered mat- 
ter, it ought to be filed as soon as practicable, after the 
matter is discovered. For, as we shall presendy see, 
if the party proceeds to a decree after a discovery of 
the facts, upon which his new claim is founded, he 
will not be permitted afterwards to file a supplemental 
Bill, in the nature of a Bill of Review, founded on such 
facts.^ On the other hand, if an objection is meant to 
be taken by the defendant, that a supplemental Bill 
brings forward matters, which might have been intro- 
duced by way of amendment, or at an earlier period of 
the cause, he should do it by way of demurrer, or plea, 
or answer, to the supplemental Bill. It will be too 
late to take the objection at the hearing.'* 

^ 339. To entitle the plaintiff to file a supplemental 
Bill, and thereby to obtain the benefit of the former 
proceedings, it must be in respect to the same tide, in 
the same person, as stated in the original Bill.^ Thus, 

1 Mitf. Eq. PI. by Jeremy, 62; Wyatt, Pr. Reg. 88, 89 ; Hinde's Ch. 

Pract. 43; Post, § 412-428; Hodson v. Ball, 1 Phill. Ch. R. 177, 180. 

9 Hodson V. Ball, 1 Phill. Ch. R. 177 ; Post, § 351, a, 421, note, 422. 

3 Pendleton v. Fay, 3 Paige, R. 294 ; Post, § 423. See Dias v. Merle, 
4 Paige, R. 259; Fulton Bank v. New York and Sharon Canal Co. 4 
Paige, R. 127. 

4 Fulton Bank v. New York and Sharon Canal Co. 4 Paige, R. 127. 

5 Ante, § 336 ; Post, § 345, 346. 



CH. VUI.] SUPPLEMENTAL BILLS. 367 

if a person should file an original Bill, as heir at law 
of tlie mortgagor, to redeem ; and it should turn out, 
upon an issue and hearing of the cause, that he is not 
the heir at law, and he afterwards purchases the title 
of the true heir at law, he cannot file a supplemental 
Bill to have the l)enefit of the former proceedings ; 
for he claims by a diflerent title from that asserted in 
the original Bill. His true course would be to fih; an 
original Bill.^ 

^ 340. If the interest of a plaintiffs suing in autre 
droit, entirely determines by death or otherwise, and 
some other |)erson lher(UijX)n l>ecom(»s entitled to the 
same pro|)erty, imder the same title, as in the case of 
new assi(i:nees under a commission of bankruptcy, u])on 
the death or removal of former assignees, or in the case 
of an executor or administrator, ui)on the determination 
of an administration durante minori {etate, or pendente 
lite, the suit may l>e likewise added to and contiiuicd 
by a supplemental Bill.^ For, in these cases, tlien^ is 



' Tonkin r. Lcthliridgr, Ci>op. K<}. R. 33; Oldham r Klxirnl, I Cuup. 
Sfl. ran. 27; Rylamls r. La Touch*', 2 Bligh, R. :>*<€); rilkin^^ion v. 
Wipnall, 2 Maihl! R. 210. 

' Miif. Vj]. pi. Ijy Jcrviny. 1th ♦•dii., i\\. Lonl RodcRfiali? seems to 
take a disti notion bet woe n thir rase of the detenni nation of tlie intirest of 
a plaintiff* >uiny: in nutn thoit^ (as in the casoH stated in the ti.>\t,) and 
thr ca50 of the d«:trriiiinalinii (»f the inlereHt of a plaintifTRuini; tn his oirn 
ri^ht, (as in th*^ r*as<' of l>ankrii]>try of a jdaintitf.) hohlin^r, thai in the 
foimer caw.', the jiariy mrreedinj; to his riirlits niuHt sue l»y :i mere sup- 
ploDicntil Uili ; anii in thf lattir eii.se. I>y an <iriLMiiai Rili, in tin; nature 
of a snpph'niental Hill. INiM. J 311*; Mitf. Ivj. 1*1. hy Jeremy, lih idit., 
Ii5, G7, 72, 0^«. h do«>8 not sn-m t«i mi\ that thi-re m any ^lell foundfd 
distinction IfCturen ihf r:i.<«'H. In eaeh rust*, it Mnuld seem, tli:il the Hill 
should In? an oricinal Hill in the nature nf a hup|di'niental Hill. f<>r it 
brinps forward new intcreMs hv n«'v.- partii-s. .\nd 1 ranitnt hut think, 
that some confusion on the »nli|i et h:i4 arirti'n, from the authontU'H not 
Dic(*ly diMin£!ui.««hin^% in tin ir lan<jii:i;;i', a nnTe supplenirnlal Bill I'nmi 
an ori|(inal Hill in the natnri> of a supph-ineiital Hill, hut rallniL' *':o'h hy 
the generic name of a supplfuiental Bill. .Mr. ('otiper (Coop. F/|. IM. 7li ; 
Post, § 34U, note 1) insists, that then* Is nu distinction ljetwe«'ii the cases, 



368 EQUITY PLEADINGS. [CH. Vlli. 

no change of interest, which can affect the questions 
between the parties, but only a change of the person, 
in whose name the suit must be prosecuted.^ And 
if there has been no decree, the suit may proceed, 
after the supplemental Bill has been filed, in the same 
manner as if the original plaintiff had continued such ; 
except that the defendants must answer the supple- 
mental Bill, and either admit or put in issue the tide o( 
the new plaintiff.^ But, if a decree has been obtained 
before the event, on which such a supplemental Bill 
becomes necessary, although the decree be only a de- 
cree nisi J there must be a decree on the supplemental 
Bill, declaring, that the plaintiff in that Bill is entided 
to stand in the place of tlie plaintiff in the original 
Bill, and to have the benefit of the proceedings upon 
it, and to prosecute the decree, and take the steps 
necessary to render it effectual.^ 

^ 340, a. So, if a suit should be brought by church 
wardens of a parish church, to restrain a person from 
pulling down the church-yard wall, and their oflSce 
should cease, while the suit is pending, and successors 
in office are appointed in their stead, they may file a 
supplemental Bill, for the purpose of stating facts, 
which have occurred since the filing of the Bill, and 
may join their successors with them as co-plaintiffs.* 

§ 341. So, where a decree directed the Master to 
approve of a settlement on a wife and her children ; 



where the plaintiff sues in his own right, or in autre droit. However, in 
deference to Lord Rcdesdale, I have lefl the text as it stands, according 
to the very language used by him. Post, § 349, note, 350, note. See 
Cooper, Eq. PI. 75, 76. 

1 Mitf. Eq. PI. by Jeremy, 4th edit., 64. 

9 Ibid. 

3 Mitf. Eq. PI. by Jeremy, 64, 65; Cooper, Eq. PI. 76; Gilb. For. 
Rom. 176; Anon. 1 Atk. 88 ; Brown v. Martin, 3 Atk. 218. 

4 Marriott v. Tarpley, 9 Sim. R. 279. 



CH. VIII.] SUPPLEMENTAL BILLS. 369 

but Ix^forc the report was made the wife died ; it was 
held| that the children had, by a supplemental Bill, a 
light to a provision out of the property.* 

^ 342. So, if the interest of a defendant is not de- 
termined, and only becomes vested in another by an 
event subsequent to the institution of a suit, as in the 
case of alienation by deed or devise, or by bankruptcy 
or insolvency, the defect in the suit may be supplied 
by supplemental Bill, or a Bill in the nature of a sup- 
plemented Bill, whether the suit is l)ecome defective 
merelv,or it is abated, as well as l)ecome defective.^ For 

^ Lady Elibank v. Moniolicu, 5 Vcs. 737; S. C. 10 Vcs. 84; (.'ooper, 
Eq. PI. 74. 

» Milf. Eq. PI. by Jeremy, 08; Post, § 349 ; Sedpwick v. Cleavcland, 
7 Paige, 290. On this occasion, Mr. Cliancollor Walwdrth stated tlic dis- 
tinction between a voluntary alienation of a defrndant jtftuhnir hte^ and 
an involuntary alienation by insolvency or bankruptcy, by operation of law. 
" In the case of the defendants,'' (said he,) *' whonc intcrcM in the subject- 
matter of the litigation l>cronies vrstcd in others, p*nt1cntr htt„ without an 
actual abatement of the suit, a distinction is very properly mud(i between 
the transfer of that interest by the mere voluntary act of the defcmlant, as 
in the case of a sale or ashi<rninent in the ordinarv course ai' buMuess, 
and a transfer of that interest by operatinn of law, as upon an assiirnmcnt 
in bankruptcy or under our insolvent acts. In the first case, llie com- 
plainant is not bound to make the assitrnce a party, althou|!h he may do 
BO, if he deems it essential to tlie relief, to which he may be entitled ayr^jinst 
■uch assignee. But in the last case, the aftsignee, who has iNToine .(>uch 
by operation of law, has a right to be heard, and must l>e made a party 
before the suit can be further proroe<]ed in. The reas<jn of the distinction 
is obvious. In the first casi*, the as.*>ii!nce, \(ho is a mere vuluntary ]iur- 
chaser, p^n</rfi/#- /i/^. cannot defeat the enmplainant's rights, or <Uluy his 
proceedings, by such pun'haM* ; for if he ronhl dii so, the ]iti<;ati(»n, by 
successive assignments, might Im; rendered interminable. He, therefore, 
haa no right to In? heard, unless he brings liims^df iH'fore the Ctmrt liy a 
aupplementil Bill, in the nature of a cros.H Dill; \ihieh he may some- 
times do to priitect hiN rigiitM as sueh aH.signec. And the ilerree in the 
original suit, to whieli such asMgnee uas nut a party, u ill lund the as- 
signed property in his hands. N«*illier ean the def(*ndant, who ban made 
such voluntary assign m«'nt ftubscf|uent to the commenceiiirnt of the »uit, 
urge that as a reason, why the suit should not proceed against him in the 
same manner, a*« if no such tian.*<fer had been made. In the other com*, 
the aaaignee, up<in whom the interest of the defendant has been east by 

KQ. PL. 47 



370 EQUITY PLEADINGS. [CH. VIII. 

in these cases, the new party comes before the Court 
exactly in the same plight and condition, as the former 
party, is bound by his acts, and may be subject to all 
the costs of the proceedings from the beginning of the 
suit.^ But the distinction is constantly to be borne in 
mind between cases of voluntary alienation and cases 
of involuntary alienation, as by the insolvency or bank- 
ruptcy of the defendant. In the latter cases, the as- 
signee must be made a party ; in the former, he may 
or may not at the election of the plaintiff.^ 

§ 343. Having thus considered, in a brief manner, 
the proper cases for a supplemental Bill, correctly so 



operation of law for the benefit of others, has a right to be heard for the 
protection of that interest. And the whole legal and equitable interest 
therein, which formerly belonged to the defendant, being vested in such 
assignee by the mere operation of the law itself, he will not be legally or 
equitably bound by a decree, to which he is not a party. (Deas v. Thorne, 
3 John. Rep. 544.) The reasons for this difference between the two cases 
do not exist in relation to the transfer of the interest of the complainant ; 
and where the adverse party makes the objection to his proceeding in his 
own name without bringing the assignee before the Court. The party, 
whose interest in the subject-matter of the suit has become divested pen- 
dente lite, can only object to the proceedings of his adversary in the suit, 
where such interest has become vested in another by operation of law, and 
not by his own mere voluntary act. But where the party, who has as- 
signed the whole or a part of his interest in the subject-matter of the 
suit, attempts to take any active proceeding therein, the adverse party may 
object to such proceeding ; on the ground, that the suit has become abated 
or defective as to such assignor, so that the same cannot be proceeded in, 
until the assignee is made a party. Perhaps there may be some excep- 
tions to this rule, particularly where the adverse party, after he becomes 
acquainted with the fact of such assignment, does some act, or takes some 
proceeding in the cause, on his part, which amounts to a legal waiver of 
his right to urge the objection, that the suit had abated or become defect- 
ive by reason of the transfer of interest." 

1 Mitf. Eq. PI. by Jeremy, 68 ; Whitcomb v. Minchin, 5 Madd. R. 91 ; 
Foster v. Deacon, 6 Madd. R. 69; Wyatt, Pr. Reg. 91; Sedgwick v. 
Cleaveland, 7 Paige, R. 290 - 292 ; Post, § 349. 

2 Sedgwick v. Cleaveland, 7 Paige, R. 290, 291 ; Supra, note ; Ante, 
§ 136, 340 and note; Post, § 351 ; 2 Story on Eq. Jurisp. § 908. See 
Turner v, Wight, 4 Beavan, R. 40; Post, § 349. 



c 
CH. VIII.] SUPPLEMENTAL BILLS. 371 

called, let us now proceed to a statement of the true 
frame and structure thereof. A supplemental Bill must 
state the original Bill, and the proceedings thereon ; 
and if the supplemental Bill is occasioned by an event, 
subsequent to the original Bill, it must state that event, 
and the consequent alteration with res{x?ct to the par- 
ties; and, in general, the supplemental Bill must pray, 
that all the defendants may appear and answer to the 
charges it contains.^ For, if the supplemental Bill is 
not for a discovery merely, the cause must be heard 
upon the supplemental Bill at the same time, that it is 
heard upon the original Bill, if it has not been before 
heard ; and if the cause has been before heard, it must 
be further heard upon the supplemental matter.^ If, 
indeed, the alteration or 'acquisition of interest hap- 
pens to a defendant, or a person necessary to be made 
a defendant, the sup|)lemental Bill may l)e exhibited 
by the plaintiff in the original suit against such per* 
son alone, and may pray a decree U|)on the particular 
supplemental matter alleged against that {H^rson only ; 
unless, which is frecpiently the case, the interests of 
the other defendants may l)e affected by that decree.* 
But it is not necessary for the plaintiff, when he files 
a supplemental Bill, to state in it all the circumstances 
of the case at length. All, that is requisite, is, that 
he should state so much of the case as shows, that 
there was an Kquity in it.* Where a su|)plemental 
Bill is merely for the pur|X)se of bringing formal par- 
tics before the Court as defendants, tht* ])arties defend- 
ants to the original Bill need not in general Ix* made 
jKirties to the supplemental Bill.^ And, in g(*neral, if 

> Miif. h>i. PI. by Joniny, 7«. « n>id. 

3 Ibid.; Ante, $331. 

^ Vif^n V. Lonl Audlcy, Siinnnn, R. 72, 77. 

^ Mitf. Eq. Pi. by Jeremy, 75, 76, and cues there cited ; Cooper, Gq 



4 



372 EQUITY PLEADINGS. [CH. Vlll. 

new parties are brought before the Court upon a sup- 
plemental Bill, the original defendants need not be 
made parties to the supplemental Bill, unless they have 
an interest in the supplemental matter;^ or their in- 
terests require that the new defendant should be a 
party to the suit.^ The facts, too, brought forward by 
the supplemental Bill, should be material to the matters 
in controversy ; for if they are not, a demurrer will lie 
to the supplemental Bill.^ 

^ 344. If a supplemental Bill to a Bill to perpetuate 
testimony is filed after the examination of the witnesses 
under the original Bill has been completed, and the 
commission is closed, for the purpose of the further 
examination of witnesses, upon the ground, that new 
material facts have been discovered since the filing of 
the former Bill, it will not be sufficient to make such 
an allegation in general terms, but the supplemental 
Bill must state, what such new material facts are, as is 
done upon original Bills in such cases.^ 

§ 345. Secondly, an original Bill in the nature of 
a supplemental Bill. This division is founded rather 
upon formal technical principles, than upon any sub- 
stantial difference from a supplemental Bill, properly 
so called. Indeed, in the books they are usually con- 
Pi. 83, 84; Ante, § 334. See the forms in Van Heyth. Eq. Drafts. 338 
-340; Hinde, Ch. Pract. 43,44; Bignall v. Atkins, 6 Madd. R. 369; 
Brown v. Martin, 3 Atk. 217. 

1 Bignall v. Atkins, 6 Madd. R. 360; Ensworth v. Lambert, 4 John. 
Ch. R. 605 ; Ante, § 334. See Baker v. Holland, 3 Hare, R. 68, 73. 

9 Jones ». Howells, 2 Hare, R. 342. 

3 Milner v. Harewood, 17 Ves. 144 ; Adams v, Dowding, 2 Madd. 
R. 53. 

^ Knight V. Knight, 4 Madd. R. 1. If new evidence has been dis- 
covered since the commission was closed, as to the facts stated in the 
original Bill, the proper course would be, not to a file a supplemental 
Bill, but to apply to the Court for permission to examine the new wit- 
nesses. Ibid. 



CH. VIII.] SUPPLEiMENTAL BILLS. 373 

founded together.* The most prominent distinrtion 
between them, however, seems to be, that a siijiplc- 
mental Bill is properly ap|)licable to those cases only, 
where the same |)arties, or the same interests, remain 
before the Court; whereas, an original Bill, in the 
nature of a supplemental Bill, is properly ap|)licable, 
when new juirties, with new interests, arising from 
events since the institution of the suit, are brought be- 
fore the Court.^ 

§ 346. Thus, for example, when any event happens, 
subsequent to the time of filing an original Bill, which 
gives a new interest in the? matter in dispute to any per- 
son not a party to the Bill, such as the birth of a tenant 
in tail ; or which gives a new interest to a party, U|X)n 
the happening of some other contingency ; the defect 
may be supplied by a Bill, which is usually called a 
supplemental Bill, and is in fact merely so with re- 
spect to the rest of the suit, although with resiMH*t to its 
immediate object, and against any new party, it has 
in some degree the effect of an original Bill.^ If any 
event hap[)ens, which occasions any alteration in the 
interest of any of the parties to a suit, and doc^s not 
deprive a plaintiff, suing in his own right, of his whole 
interest in the subject, as in the case of a mortgage or 
other jmrtial change of interest; or, if a jJaintitT, suing 
in his own right, is entirely deprived of his interest, 
but he is not the sole plaintiff; the defect arising from 
either event may be supplied by a Bill of the same 



1 Mr. Cooper treats of both nf them und«*r the same head ; ('(M){nt. Va]. 

PI. 69; and although Ijord Red«'!»dah> has made a fumial divJMi t'thi ni ; 

yet in diacussinj^ them, he h:u mixed th«.' cannH to^ethrr without any at- 
tempt to arrani^e them into se pa rate hifadn. Mitf. \'\»\. i'l. hy .Irrrmy, 
61-70. Sec aiflo Kiihsell r. Sharp, 1 \vs. & H. 5041; Kandull r. Mun- 
ford, IH Vrn. 1^1. 

« Tooper, Kq. JM. 75, 7«; Ante, ^ 33f», 33«. 

3 Mitf. ¥a\, pi. by Jeremy, 03. 



374 EQUITY PLEADINGS. [CH. VIII. 

kind, which is likewise commonly termed, and is, in 
some respects, a supplemental Bill merely, although in 
other respects, and especially against any new party, 
it has also in some degree the effect of an original Bill.* 
In all these cases, the parties to the suit are able to 
proceed in it to a certain extent, although from the de- 
fect arising from the event, subsequent to the filing of 
the original Bill, the proceedings are not sufficient to 
attain their full object.^ The Bill here spoken of, is 
properly called an original Bill, in the nature of a sup- 
plemental Bill; because it is original, as to the new 
parties and new intersts; and it is in some sort supple- 



1 Mitf. Eq. PI. by Jeremy, 63. 

2 Mitf. Eq. PI. by Jeremy, 63, 64, 72, 98. Sir Thomas Plumer, in 
commenting on this passage, in Adams v, Dowding, 2 Madd. R. 53, used 
the following language; ** If merely relevant events, happening subse- 
quent to the filing of a Bill, makes a supplemental Bill necessary, it is 
necessary in this case ; but it is not all relevant events posterior to a Bill, 
that render a supplemental Bill necessary. It can seldom be necessary, 
where the Bill is for an account. When a Bill is filed for an account of 
tithes, an account is taken of the receipts posterior to the original Bill ; 
and it never was supposed, that a supplemental Bill was necessary, be- 
cause tithable matter had been received subsequent to the filing of the 
original Bill. It may be asked, what limit is there? When is a supple- 
mental Bill necessary? Lord Redesdale has clearly shown, that it is not 
merely, because an event has happened posterior to the original Bill, that 
a supplemental Bill becomes necessary. He says ; * When any event hap- 
pens subsequent to the time of filing an original Bill, which gives a neto 
interest in the matter in dispute to any person^ not a party to the Bill; as 
the birth of a tenant in tail,* &c., a supplemental Bill may be filed. The 
proposition is qualified by the words, ^ gives a new interest.^ And in 
another passage, he says; * A supplemental Bill must state the original 
Bill and the proceedings thereon ; and if the supplemental Bill is occa- 
sioned by an event subsequent to the original Bill, it must state that event, 
and the consequent alteration tvith respect to the parties.^ Are there any 
new parties brought forward by this supplemental Bill ? None. If a sup- 
plemental Bill is filed before a decree on the original Bill, 'both Bills are 
heard together ; if after a decree, then the cause is heard upon the supple- 
mental Bill only. If this supplemental Bill had been filed af\er a decree, 
what other decree could have been made, except what had already been 
made in the original suit? " See also Gilb. For. Rom. 109. 



CH. VIIl.] SUPPLEMENTAL BILLS. 375 

mental also, as being an appendage to the former Bill, 
as to the old parties and the old interests.^ 

^ 3n. V\x)n the same ground, where a husband 
and wife are defendants to a Bill, if by the death of 
the husbtind a new interest arises to the wife, the suit 
becomes defective ; and an original Bill in the nature 
of a supplemental Bill becomes necessary to bring that 
interest before the Court ; for she is not bound by the 
answer put in during her coverture.^ 

^ 3V8. Upon the same ground, if a person, pendente 
lite, becomes assigiu^e of the interest of a {mrty in the 
suit, and wishes to 1x3 admitted to take part in it, he 
must bring forward his claim by an original Bill, in 
the nature of a supplemental Bill/ 

^ 349. So, if a sole plaintiff, suing in his own right, 
is deprived of his whole interest in the matters in ques- 
tion, by an event subsequent to the institution of a 
suit, as in the case of a bankrupt or insolvent debtor, 
whose whole property is transferred to assignees ; ^ or 
in such a suit the plaintitT assigns his whole interest to 
another; the plaintitV in either case Inking no longer 
able to prosecute the* suit for want of inten»st, and his 
assignees claimina by a title, which may l)e litigated, 
the benefit of the proceedings cannot l)e obtained by a 
mere supplemental Bill ; but it must be sought by an 
original Bill in the nature of a supplemental Bill.^ 



» Cooper, Va\. PI. T5, 7«; Mitf. Va{. PI by Jeremy, 99; Ilimlf, C'h. 
Pract. 41 ; Ante, ^ 31o and note. 
» Mole V. Siiiiih. 1 Jur. & Walk. fil5. 
3 Foster c. Dracuii. Madd. II. 59. 

* Si»e U'c V. i^-e, 1 Hare, R. «il ; Ante, $ 32rt, 329, 312. 

* Milf, Vm\. pi. by Jeromy, ft',, 07. 72, 9M. Srv alMi Anon. I .Vlk. hH ; 
WyiU, Pr. Heff. KU; St«ii?WKk r. (Meaveland. 7 Paiirp, K. 2^7, 2W». On 
tbw ocrasion. Mr. Chancellor Walworth examined the dortrini' at lar^e, 
and laid; ** If this ha«l Um the caiu* uf an awiifninent by the rouiplain- 
int under the inaolvent acts, there could have bceo no possible doubt, that 



376 EQOITY PLEADINGS. [CH. VIII. 

§ 350. And if, by any event, the whole interest of a 
defendant is entirely determined, and the same interest 

the suit had abated ; or rather that it had become so defective, that the 
complainant could not proceed any further in his own name a^inst the 
defendant, if the latter had thought proper to raise the objection. This 
Court requires the real parties in interest to bring- the suit, except in cer- 
tain cases, where the complainant represents the rights of those, for whom 
the suit is brought, both legally and equitably, as in the case of executors, 
or of trustees, or assignees under the insolvent acts. And where the sole 
complainant, who originally brought the suit in his own name sjid not in 
autre droit, is discharged under the insolvent acts, and makes an assign- 
ment of his property for the benefit of his creditors, the assignee must be 
made a party before the suit can be further proceeded in. (Williams v. 
Kinder, 4 Ves. Rep. 387.) The proper course for the defendant, in such 
a case, if he wishes to have the suit proceeded in, or put an end to, is to 
apply to the Court for an order, that the assignee file a supplemental Bill, 
in the nature of a Bill of revivor, within such time as shall be prescribed 
by the Court for that purpose, or that the complainant's Bill be dismissed. 
And notice of such application should be served upon the assignee, as 
well as upon the complainant in the original suit. (Porter v. Cox, 5 Madd. 
Rep. 80.) This proceeding is in analogy also to the statutory direction 
in case of the abatement of a suit by the death of the sole complainant, 
where his representatives neglect to revive the suit. (2 R. S. 185, ^ [118] 
124.) From the report of the case of Massey v. Gillelan, 1 Paige, R. 
644, it would seem to have been decided, that the suit might be contin- 
ued, as at law, in the name of the original complainant, upon his giving 
security for costs. The question, however, as to the right of the com- 
plainant to proceed without bringing the assignees before the Court by a 
supplemental Bill, was neither raised nor considered, in that case; as the 
defendant merely asked, that the suit should not be permitted to proceed 
in the name of the insolvent debtor, unless security for costs was filed. 
But in the subsequent case, of Garr r. Gomez, in the Court for the Cor- 
rection of Errors, 9 Wend. R. 649, the principle, that the suit becomes 
defective in such a case, and cannot be proceeded in, if objected to by the 
defendant, until the assignees are brought before the Court, is distinctly 
recognized. It is proper also to remark, that in the case of an assignment 
under the bankrupt or insolvent acts, the suit is not strictly abated, even 
as to the complainant ; but is merely become so defective, that he cannot 
proceed therein, until the assignee is brought before the Court. And the 
assignee becomes so far the legal and equitable representative of the rights 
of the complainant, that upon a new and supplemental Bill in the nature 
of a Bill of revivor and supplement being filed by the assignee, to continue 
the proceedings in his own name, it is not necessary to make the former 
complainant a party thereto ; which would be necessary in the case of an 
assignment of only a part of the interest of the complainant in the subject- 



CH. VIII.] SUPPLEMENTAL BILLS. 377 

is become vesti^d in another, by a title not derived 
from the former ])artyy as in the case of a succession to 



matler of the suit. The complainant, however, who has still an interest 
in having his debts pai<l out of the assigned property, or at least hsis an 
interest in the surplus, if there should l>e any, is not obliged to abandon 
the miit absolutely, if the suit is necessary for his protection : ahhoufrh 
Um iMigncc refuses to proceed therein, without making any rouipromise 
of the suit with the defendant. In that case, the complainant may pro- 
ceed in his own name ; but as the assignee lias become a necessary party 
u.to all subsequent proceedings in the suit, the complainant must bring 
him before the Court by a supplementary Bill. (Mitfurd's F«<iuity Plead. 
66,4th Lond. edit.; Story's Va{. PI. 2S2, note; 2 John Ch. Rep. Id.) 
In such 1 case, however, tht; complainant might be required to fih; secu- 
rity fur costs, as directed by the third subdivision of the first section of the 
title of the revised statutes relative to st^rurity for the payment of costs. 
(8 R. S. 630.) *• See Ante, § 15«, 343; Mills v. lloag, 7 Paige, U. 18; 
Binks 9. Binks, 2 Bligh, H. 51)3. Mr. Cooper insists, that there is no dif- 
ference between the case of a plaintiff suing tn autn droits and that of a 
pl^ntiff suing in his own right, as to the right to maintain a supplemen- 
tal Bill. His language is; ** And although Ij<ird Uedesdale, in his Trea- 
tise, takes a distinction between a sole plaintifT suing m autre droits and a 
sole plaintiflT suing in his own right, laying it down, that, in the first case, 
if the interest di'termines by death «ir otherwise, and s«>me other person 
thereupon becomes entitled to the same pro^HTty under the same title, as 
new assignees of a bankrupt, that the suit may be continued by a supple- 
mental Bill ; but that in the other ea^e of a sole plaintitT suing iii his own 
right, as in the cas4> of a bankrupt or insidvent drhtor, whose \ihole prop- 
erty is transferred to assignees, tlie benefit «)f the proceedings eauntit be 
had by or against the as.signe«>s by a supplemental Bill, but must b<* sought 
by an original Hill; yet, uith gnat deference to so high an authority, I 
mast obeervc, that this distincti«)n cer1:unly is, in the case of bankruptcy, 
and some others, now di.^regard<'d in practice^ and which praetire sf*ems 
sanctioned by the later authorities.'* C'<K>{M'r, Va\. PI. 70; Ante. J 310, 
note. Whether a suit in Iviuity is abated by the bankruptcy of the plain- 
tiff, as well as defective, h:is iu'eii a matter of doubt. But it serins now 
thought, that the weight of auth«irity is, that it is defective merely, and 
that the assignees may be brought forward by a suppbrmental Bill. See 
Cooper, Eq. PI. 70,77; Mitf. F^j. PI. by Jeremy, 05 and note (/).(*« 
and notes, 07 ; Lee r. Lei-, I llan-, 0-JI ; Ante, § 3-J«J. I^»rd Hed« wlale's 
language is; "If a commission of bankrupt issues against any party to a 
suit, or he is discharged us an in.H«>lvent debtor, his interest in tin' .Mibjcct 
is, unless he is a mt-re trustee, generally transferred to his assignees ; and 
to bring them before the Court a supplemental Bill is necessary ; to uhich 
the bankrupt or iiuHjlvent debtor is nut usually required tu be a party, al- 
though a bankrupt uiay dispute the vahdity of the ounumsbiun issued 

EQ. PL. 48 



378 EQUITY PLEADINGS. [CH. VIII. 

a bishopric or benefice, or in the case of the determi- 
nation of an estate tail, and the vesting of a subsequent 
remainder in possession, the benefit of the suit against 
the person, becoming entitled by the event described, 
must also be obtained by an original Bill in the nature of 
a supplemental Bill ; although, if the defendant, w^hose 
interest has thus determined, is not the sole defend- 
ant, the new Bill is supplemental to the rest of the 
suit, and is so termed and considered.^ The same rule 



against him. But, if plaintiff, a bankrupt may proceed himself ia the 
suit, if he disputes the validity of the commission ; or a bankrupt or in- 
solvent may proceed, if the suit is necessary for his protection ; or if his 
assignees do not think fit to prosecute the suit, and he conceives, that it is 
for his advantage to prosecute it. Under those circumstances, however, 
he must bring the assignees before the Court by supplemental Bill, as any 
benefit, which may be derived from the suit, must be subject to the de- 
mands of the assignees, unless he seeks his personal protection only 
against a demand, which cannot be proved, or which the person making 
the demand may not think fit to prove, under the commission issued 
against the bankrupt, or from which the insolvent debtor may not be dis- 
charged.*' Lord Eldon, in alluding to cases of bankruptcy, used the fol- 
lowing language in Randall 17. Munford, 18 Ves. 427, 428: — "This 
Court, however, without saying, whether bankruptcy is or is not strictly 
an abatement, has said, that according to the course of the Court, the suit 
has become as defective, as if it was abated ; and as the assignees will 
have the benefit of the suit, and assuming in practice, that he, who is a 
bankrupt, will continue so, the course, which the Court has taken, is to 
require him to bring his assignees before it by Bill of Revivor, or supple- 
mental Bill in the nature of a Bill of Revivor, or by whatever name it is 
called. And the Court supposing, that the bankrupt will find the means 
of giving the assignees notice, and not troubling itself with that difiiculty, 
dissolves the injunction, frequently with great injustice, if they do not 
come here." In Harrison 17. Ridley, Com. R. 589, a Bill by the assign- 
ees of an insolvent debtor was called an original Bill in the nature of a 
Bill of Revivor. 

1 Mitf. Eq. PI. by Jeremy, 67, 68, 72, 98. See Foster 17. Deacon, 6 Madd. 
R. 69 ; Lloyd v. Johnes, 9 Ves. 54 ; Oldham v. Eboral, 1 Coop. Sel. 
Cas. 27. Lord Redesdale has in another passage repeated the doctrine 
stated in this and the preceding section, with some additional explanations. 
He says ; '* If the interest of a plaintiff* or a defendant, suing or defend- 
ing in his own right, wholly determines, and the same property becomes 
vested in another person not claiming under him, as in the case of an ec- 
clesiastical person succeeding to a benefice, or a remainder-man in a set- 



CH. VIII.] SUPPLEMENTAL BILLS. 379 

will apply to a case, where, pending a suit against 
the trustees of a charity, some of the trustees die, and 



tlement becoming entitled upon the death of a prior tenant under the ^me 
■eulement, the 8uit cannot be continued by Bill of Kcvivor, nor can its 
defectB be supplied by a supplemental Bill. For though the successor in 
the first case, and the remaindcr-nian in the s<?cond, have the same proper- 
ly, which the predecessor , or prior tenant, enjoyed ; yet they are not in 
many cases bound by his acts, nor have they in some cases precisely the 
same rights. But, in ^reneral, liy an original Bill in the nature of a sup- 
plemental Dillf the benefit of the ftirmtrr proceedings may he obtained. If 
the party, whose interest is thus determined, was not the sole plaintiff or 
defendant, or if the property, which uccilmoiis a liill of this nature, af- 
fects only a part of the suit, the Bill as to the other parties, and the rest 
of the suit, is, as has been before observed, supplemental only. There 
seems to be this diflference between an orif?inal Bill in the nature of a Bill 
of RcWvor, and an original Bill in the nature of a supplemental Bill. 
Upon the first, the benefit of the former proceedings is absolut(>ly ob- 
tained, so that the pleadings in the first canse, and the dejiositions of wit- 
nesKS, if any have been taken, may be used in the same manner, as if 
filed, or taken in the second cause ; and if any d(.*cree has been made in 
the first cause, the same drerei.- sIkiII bo made in the second. But in the 
other case a new defence may Im- made ; the pleadinirs and depositions 
cannot be used in the same manner, as if filed or taken in the same cause; 
and the decree, if any has been obtained, is no otherwise of advantage, 
than as it may be an inducement to the Tourt to make a similar decree.'* 
Mitf. Eq. PI. by Jeremy, 72, 73. I^ord Kldon, in commenting on this 
passage, in IJuyd v. Johnes, 9 Ves. ol, 5'>, used the following language : — 
*• With respect to the passage, in which it is suppos<;d there is s»»nM; ob- 
scurity, I may say, upon the authority of I^ird Uedeadale himself, it is not 
▼ery easily tu be removed ; nor capable of being removed l)y stating any 
judgment authorizing that passage. The pro(H)sitioii, that i/t irnural., by 
an original Bill in the nature of a supplemental Bill, tht; benefit of the 
former procet.'dings may b«* oliiained, is pro{K'rly so restrained. It eannot 
be always; fur undoubtedly the Ki{Uitirs.as against one tenant in tail and 
another, not applying to the ca^; of eontnurt \%ith the f<inner, may htivo 
verv different en^irrtn with referenee to the iiitf.T(*st derived out of that 
donum^ out of which both e.Mates tail are di* rived. In the distinetion 
stated between an original Bill in the nature of a Bill of Revivor, and an 
original Bill in the natun* of a supplemental Bill, I^ird Redesilale does 
not say, tliat in the latter the pleadings and d«'|Nisitions in the fir.M eaiise 
cannot be used ; but that they canii(»t lie usim! in the same manner. And 
the difficulty arises upon the negative proposition, without explaining, 
what is the precise idea, that l»elongs to it. Thes«' passages do not deter- 
mine the sense of the words, * thtyrorenhn/^s upttn thf/orniir lUii.' You 
mnat endeavour to determine, to what stage the cause must have gone, to 



380 EQUITY PLEADINGS. [CH. Tin. 

Others are removed, and new trustees are appointed* In 
such a case, the new trustees must be made parties by 



entitle you to say, there are proceedings, the advantage of which the 
second Bill may draw to itself; as Lord Redesdale expresses it. But the 
proposition so put comprehends every stage of the cause, as furnishing 
the question, between the answer and the final decree obtained and ex- 
ecuted. And general doctrine of this sort does not enable you to say, 
what the Court is to do in every intermediate case between the first and 
the last stages of the cause, where the interest of the plaintiff or defend- 
ant is absolutely gone, and where a person succeeding as second tenant in 
tail, or the first coming into existence afler the suit instituted, can obtain 
the benefit, and what benefit/' He added ; '* It is difficult to say, what 
the Court has done, or ought to do, embracing the case of answer only ; 
the case of answer replied to, and witnesses examined de bene esse; wit- 
nesses examined in the cause, and dying before the hearing ; aa issue 
directed ; a trial ordered and not had ; an application for a third new trial ; 
decree not obtained ; decree obtained, and not executed ; accounts taken, 
that the Court may know whaf decree to make ; including also the ques- 
tions, whether, if the former Bill contained a bad statement for this plain- 
tiff, he would have been bound, and, if not bound, whether he would have 
been affected by it. I apprehend, a Court of Equity would, in many 
cases, not all, admit a plea of dismissal upon the merits to bar a remain- 
der-man in tail of a new estate tail under the same gift, as well as a per- 
son claiming the same estate. I admit, there is no judgment in point. 
But the justice of the Court furnishes this as a principle ; that it is of ab- 
solute necessity, when once it is said, the tenant in tail shall represent the 
inheritance, that those, who are entitled to the inheritance, shall, in this 
Court, have the benefit and the disadvantage of a proceeding by hiwL But 
it has been always thought competent to add this qualification ; liberty to 
apply special circumstances, under which the estate is held, as a ground 
for saying, they ought not to have that benefit, or suffer that disadvantage. 
They have in general put in new answers. Consider the inconvenience. 
If the Bill claims a charge upon the whole inheritance, and created by the 
author of all the gifts, comprising the inheritance, an estate for life, with 
remainders to the first and other sons in tail ; and the first tenant in tail 
in being is made a party, and he dies without issue ; according to the 
constant practice, all the proceedings are had against the second son, as if 
he had been originally a party. And if I am not misled by the authority 
of Lord Redesdale, provoked, I may say, to accuracy upon this subject, 
those proceedings would be carried on by a Bill, not stating the facts in 
the original Bill, but stating, that the original Bill had represented the 
facts, as there represented. And practice will sanction the declaration, 
that this form would sustain the suit against the second son, as a due 
mode of putting in issue the fisusts, that had been put in issue against the 
eldest. Suppose the witnesses examined, not only in chief, but de kmu 



CH. Vlll.] SUPPLEMENTAL BILLS. 381 

Bill in the nature of a supplemental Bill before further 
proceedings are had, or a decree rendered, otherwise 



i; And conBider the inconvenience, if a Court of Justico says, the 
plaiotiff Dccd bring no one before the Court but the first tenant in tail ; 
that the suit so instituted i» perfect ; that firstt tenant in tail rcprofientin;*^ 
the whole inheritance, all subsetiuent to him, either for their benefit or 
otherwiae ; supposing the merits to depend upon the testimony of one or 
two old, infirm individuals, whom the tenant in tail in desirous to examine 
debene esse; whose evidence would entitle him to a decree of dismissal : 
it would be the grossest injustice, if, by the accident of his death, the 
eauae perhaps delayed, liccause containing such matter, the subscfiuent 
tenant in tail is to l»egin an original suit, in which he cannot have the 
benefit of those depositions; and the enjoyment of the estate is to depend 
upon the accident ; as he was not permitted to be a party to a suit, in 
which he might have had the same evidence ; and it is not competent to 
him in any manner to protect his estate upon the truth and fact of the 
case. I cannot hold that a go<Ml judgment, which detennines, that one 
tenant in tail only need l)o a defendant ; but that the proceed ing.'<, had 
against him for all, shall not be for the benefit of all. The case of wit- 
nesses examined in chief, admits the same consideration. So, where 
tenant in tail files a Dill, as a person representing the whole inheritance, 
and afrainst an individual who states by his answer a case entitling the 
pUintiff to a decree. If he dies before the hearing, it is extraordinary to 
aay, that if that tenant in tail, at whom the Court looks, as supporting 
the whole interest in the inheritance, had lived, he should have ))cen able 
to obtain a decree protecting him and all; yet, by the accident of his 
death, before the right of the others commenced, the benefit of that shall 
be lost. In the very ordinary ease, where the Dill is filed for the purpose 
of raising a charge against the inheritance, divided into estates tail, 
againat a remote remainder-man ; those intermediate not being yet in esse; 
if the cause has proceeded a certain length, an intermediate remainder- 
man coming in esse, you go on to state the former proceedings ; and that 
ia held allegation sufficient to put the facts in issue with regard to that 
aort of defendant. But I admit the general opinion, that, if in such a 
case, witnesses have been exaniin«>d atrainst th«* former defendant, yet, 
upon the other's coming into exisienn*. the plaintiff must examine again. 
It tiso said. I doubt it ; and am of opinion, that, whenever the case shall 
arise, if the witnesses should die, this Court, ufion its own principles, 
may hold the subsequent defendant entitled to the benefit of that testimo- 
ny. So, I should also say, this sort of principle, arising out of what the 
Court does fur the convenience of justice*, must Ik^ applied iHith dn and 
againat the tenant in tail ; subject always to this, that, where the tenant 
in tail takes a different interest, or rather a similar inten*st, not affected by 
the same rirrunistanees. it is competent both for and against him, to bring 
forward the Klquitiea belonging to those different circumstances, as contra** 



382 EQUITY PLEADINGS. [CH. YIII. 

they will not be tx)und thereby ; for they come in under 
the original founder, and not under the old trustees.^ 



distiDguishiiig his case. And that is the result of the passage in Lord 
Redesdale's book, which so stated, I think right, that the difference be- 
tween the issue in tail, heir, or devisee, and a remainder-man claiming bj 
force of a new limitation is, that in the latter case the party is not bound 
by the shape of the defence.'* See also Cooper, Eq. PI. 80-88; Mitf. 
Eq. PI. by Jeremy, 98; Oldham v, Eboral, 1 Coop. Sel. Cas. 27; Me- 
chanics* Bank of Alexandria v. Setons, 1 Peters, R. 310. 

1 Attorney-General v. Foster, 2 Hare, R. 80, 93. In this case, Mr. Vice- 
Chancellor Wigram said ; ** The argument in support of the exceptions 
was rested upon two distinct grounds : — First, it was said, that when the 
fact is once admitted, that the new trustees came into the places of thoee, 
who had answered the original information, and to whom they succeeded, 
it follows, that they are as completely bound by the proceedings in the 
cause, including the decree, as if they had been originally parties. It 
was said, that this information, in fact, falls under that description of 
pleading, which Lord Redesdale terms an original Bill in the nature of a 
Bill of Revivor, and which he points out as the proper form of proceed- 
ing, where the death or other cessation of the interest of a party is at- 
tended with such a transmission of that interest, that the person entitled 
may be the subject of controversy, and the suit, therefore, is not permit- 
ted to be continued by a mere Bill of Revivor, but in which no other 
question can be litigated. Pursuing the expressions of Lord Redesdale on 
the same point, it is argued, that, as an original Bill, in the nature of a 
Bill of Revivor, has so far the effect of a Bill of Revivor, that the new 
party, if he succeeds to the interest of a plaintiff, is entitled to the benefit 
of the former suit, and if he succeeds to the interest of a defendant, the 
plaintiff is entitled to the benefit of the former suit against him, as if the 
suit had been continued by Bill of Revivor, so, in this case, the relators 
are entitled to the benefit of the former proceedings, against these trus- 
tees, subject only to the question, whether they are, or are not, the sub- 
stituted trustees. Secondly, it was said, that, if the relation of the parties 
were not such as to entitle the Attorney-General to the benefit which the 
former proposition assumes, the supplemental information was so framed 
as to tender one issue only ; namely, whether the defendants are bound or 
not bound by the former proceedings ; and that if, at the hearing of the 
cause, the Court should be of opinion, that the defendants are not bound 
by the proceedings in the original cause, the present information must be 
dismissed, and the Court could make no decree against the new trustees, 
upon the merits of the case made by the original information. I have 
considered both these grounds, and, excluding the second, I think the first 
cannot be supported. I think the practice of the Court required, that the 
new trustees should have been brought before the Court before the hearing 
of the original and supplemental informations, in which the decree was 



CH. VIII.] SUPPLEMENTAL BILLS. 383 

§ 351. The voluntary alienation of property, pend- 
ing a suit, by any party to it, is not permitted to 



ultimately drawn up. At that time, they were not less the reprcsrnta- 
tives and protectors of the charity, than any other of the trustees; and 
the charity was not, in their ahsencc, pro])orly represented at the hearing 
of the cause. The position of the new trustees was likened at the har to 
that of a purchaser junthntv lit* ; and I was referred to the case of The 
Biahop of Winchester v. Paine, 11 Ves. 191. 1 do not admit the analo- 
gy. I think the new trustors are not to he considered as purchasers, 
pendente iitr, un<ler the other trustors ; hut that they came in under the 
founder, and wcro n<'ross:iry parties to the decree. The information it- 
aelf BO treats the oaso, and I think correctly. If I am ri$rht in this view 
of the question, it uill follow, that the new trustees must, at the time of 
answerinj? this information, he in the same position as if the prosent infor- 
mation had been filed against them, and they had answered it before the 
original and first supplemental information were heard. In that ca.se, it is 
clear, that they mi^iit have made any defence, which the justice of the 
caae required, suhjoct to a question of costs if they had needh>ssly re- 
peated that, which was contained in the answers of the former trustees. 
My proposition is, not tliat the new trustees would necessarily ho unaf- 
fected by the answers of the former trustees, or by the prm'oediiijrs in 
thia cause anterior to their app<untmciit, hut that they were not so Ijound 
aa to be absolutely precluded from making a proper case against the de- 
cree prayed agaiiis^t them, and from hcin<r heard to argue ag.iinst its cor- 
rectness and propiioty. The assignees of a defendant, who iK'comes 
bankrupt after answer, may, in some sense, be affected l)y \\\f> answer : 
but they are not nt*c^^.sarily precluded, l>y their relation to the bankrupt, 
from atatinfr their own case in their answer, against the relief prayod by 
the Bill. Kxtreme cases were put for the pur(»ose of showing the incon- 
Teoience which p<issil)|y mi^ht result from ropeati*d changes of trustees. 
But those extreme cas<*s (which, in fart, rarely if ever occur) do not fur- 
nish the rule for cases like the pre.s<>nt, which would have been subject to 
no difficulty whatever, if that, which I consider the rofrular practice of the 
Court, had been attended to. I'pon the second question, which is one of 
strict pleadinfv, 1 have certainly felt ditficulty Hut adverting; to what 
Lord Rcdesdale says, as to the frame of tlmse original Hills, which are 
filed for the purjKise of hivint; the lM*nefit of proceedings in exiMin;? <uitn 
againat persons not parties to those proceed in ps, and to what I^jrd Kid on 
both said and determined in IJoyd r. Job new, Ve^. 37, respecting Hills 
of that nature (notwithstanding the intimation of his opinion as to whit 
tlie more convenient rule of pleading would 1h'), I think that the facts, 
which constitute the c:w made by the original information are so far put 
io iuue by the present int'ormation, that the Court might, at the hearing 
of thia information, go into the ease at large against the new trustees ; 
and would not, at that hearing, be confined to the narrow iaaue, which the 
argument for the Attorney-General assumes.'* 



384 EQUITY PLEADINGS. [CH« Till. 

a£fect the rights of the other parties, if the suit pro- 
ceeds without a disclosure of the fact, except so far as 
the alienation may disable the party from performing 
the decree of the Court.^ Thus, if, pending a suit by 
a mortgagee to foreclose the equity of redemption, the 
mortgagor makes a second mortgage, or assigns the 
equity of redemption, an absolute decree of foreclosure 
against the mortgagor will bind the second mortga- 
gee, or assignee of the equity of redemption^ who can 
only have the benefit of a title so gained by filing a 
Bill for that purpose.^ But upon a Bill by a mortga- 
gor to redeem, if the mortgagee assigns, pendente lUe^ 
the assignee must be brought before the Court by the 
mortgagor, who cannot otherwise have a reconveyance 
of the mortgaged property.* The Bill, which is neces- 
sary in the latter case, is merely supplementary ; but in 
the former case, the Bill must be an original Bill in the 
nature of a cross Bill, to redeem the mortgaged prop- 
erty/ If the party aliening be the plaintiff in the suit, 
and the alienation does not extend to his whole in- 
terest, he may also bring the alienee before the Court 
by a Bill, which, although in the nature of an original 
Bill against the alienee, will be supplemental against 
the parties to the original suit ; and they will be neces- 
sary parties to the supplemental suit, only so far as their 
interests may be affected by the alienation.* General- 
ly, in cases of alienation, pendente lite^ the alienee is 
bound by the proceedings in the suit after the aliena- 



' Mitf. Eq. PI. by Jeremy, 73. See Ante, ^ 156, 342, note, 349. The 
distinction between cases of voluntary alienation pendente lite, and invol- 
untary alienation by operation of law, as insolvency or bankruptcy, is 
fully discussed in Sedgwick v. Cleaveland, 7 Paige, R. 290-292. 

9 Mitf. Eq. PI. by Jeremy, 73. 3 ibid. 4 ibid. 

5 Mitf. Eq. PI. by Jeremy, 73, 74, and cases there cited ; Cooper, Eq. 
PI. 77 ; Ante, § 156, 340, 342, 343, 349 ; Post, ^ 351, a. See Turner v. 
Wight, 4 Beavan, R. 40. 



CH. VIII.] SUPPLEMENTAL BILLS. 385 

lion, and before the alienee becomes a party to it ; and 
depositions of witnesses, taken after the alienation, hut 
before the alienee became a party to the suit, may be 
used by the other parties against the alienee, as they 
might have been used against the party, under whom 
he claims.^ 

§ 351, a. The same rule would prevail, where a 
vendee should file a Bill for a si)ecific performance of a 
contract for the purchase of land against the vendor, 
and pending the suit, he (the vendee) should sell to 
one or more sub-purchasers. In such a case, the sub- 
purchasers need not be made parties ; and they would 
be bound by the decree in the suit. Indeed, they would 
have a right to insist, that their immediate vendor 
should proceed in the original suit for their Ix^Miefit and 
at their charge, upon the ground, that by the sub-sale, 
he had in effect become their trustee of all tin; rights 
under the original contract.^ But if the original 
vendee had entered into a contract with tlu^ sub- 
purchasers, not that he, but that the original vendor 
should convey to them, the sub-purchasers, if they 
purchased before any suit brought, might then have 
been necessary and proper parties to a suit for a spe- 
cific performance against the original vendor by the 
cviginal vendee.^ 

§ 351, 6. A Bill, in the nature of a supplemental 
Bill, may also Ix^ required, not only where new in- 
terests ariw*, either before or after a decree ; but also 
where relief of a diflerent kind, or u|X)n a difl*en*nt 



1 Ibid. ; Ante, { UiV*, 340, 3IJ. 

• Wood r. Orimth, 1 Swannt. R. TiS, W>; 2 Suf;<U>ii uii Vendors, ch. 8, 

§9, wrt. 3», p. I.'>, Ifi, loth ftlil 1k19; v. Walford, 1 Rum. R. 

378; 1 Daiiicll, i'h. Piact. 375; ^2 Siory on Ya\. JuriMp. ^ 1050, 1051. 

3 V. Walford, t Kubs. H. 37*.> ; 1 Daniell, Ch. Pract. 375. 

EQ. PL. 49 



386 EQUITY PLEADINGS. [CH. Till. 

principle, is required from that in the original de- 
cree.^ 

^ 352. A supplemental Bill, or an original Bill in 
the nature of a supplemental Bill, is not in all cases 
either proper, or necessary, merely because new events 
have occurred since the original Bill. But (as w^e have 
seen) the facts must be material to the original cause, 
or be such, as could not, in that stage of the original 
cause, be brought into 'it w^ithout such a Bill.* For, 
where there is no alteration in the interest of the par- 
ties, nor any particular circumstance requiring further 
discovery ; but where a fact only has occurred, which 
might be proved under the proceedings in the original 
Bill, as in taking an account before the Master under 
the prayer of the original Bill, and the relief is not 
varied by the supplemental matter, but the plaintiff 
may have the relief prayed for by such supplemental 
Bill under the original Bill, the supplemental Bill is 
improper.' 

^ 353. Having thus stated these particulars in re- 
lation to the general nature of an original Bill in the 
nature of a supplemental Bill, it remains to state, what 
the proper frame of such a Bill should be. A Bill for 
this purpose must state the original Bill, the proceed- 
ings upon it, the event, which has determined the in- 
terest of the party, by or against whom the former Bill 
was exhibited, and the manner in which the property 
has vested in the person, who has become entitled. It 
must then show the ground, upon which the Court 
ought to grant the benefit of the former suit to or 
against the person, who has become so entitled ; and 

1 Hodson V, Ball, 11 Sim. R. 456, 463 ; S. C. 1 Phillips, Ch. R. 177 ; 
Ante, § 338 ; Post, § 422. 

9 Ante, § 332, 333, 335-337. 

3 Adams v. Dowdiog, 2 Madd. R. 55. See Gilb. For. Rom. 109. 



CH. viii.] BILLS of' revivor. 387 

•i 

it must pray the decree of the Court, adapted to the 
case of the plaintiff in the new Bill.^ This Bill, al- 
though partaking of the nature of a supplemental Bill, 
is not an addition to the original Bill, but another 
original Bill, which, in its consequences, may draw to 
itself the advantage of the proceedings on the former 
Bill.' 

^ 354. Thirdly; a Bill of Revivor, strictly so called. 
This is the usual mode of reviving and continuing the 
proceedings, whenever there is an abatement of the 
suit before its Anal consummation. An abatement, in 
the sense of the Common Law, is an entire overthrow 
or destruction of the suit, so that it is quashed and 
ended.^ But, in the sense of Courts of Equity, an 
abatement signifies only a present suspension of all 
pioceedings in the suit, from the want of proper par- 
ties capable of proceeding therein. At the Common 
Law, a suit, when abated, is absolutely dead. But, in 
Equity, a suit, when abated, is (if such an expression 
be allowable) merely in a state of suspended animation; 
and it may be revived.^ The death, or marriage, of 
one of the original parties to the suit, is the most com- 
mon, if not the sole cause, of the atmtement of a suit 
in Equity. As the interest of a plaintiff usually extends 
to the whole suit, therefore, in (general, upon the death 



> Mitf. Bj. PI. by Jcrrmy, !*!». 

• Mitf. Efj. PI. by Jeremy, iW, Oil, and raM.'» there cited ; Phelps v. 
Sproule, 4 Sim. R. 31H; Vi^frs c. I»rd Aiidloy, 1> Sim. K. 75. The 
following is the common prayer of an ori^'inal Bill, in the nature of a 
BupplemeDta] Bill, in the case of the bankruptcy o( the dcfcn<lant pending: 
Uie suit. * And that the plaintiHTH may have the benefit of the said suit 
and proceedings against the said I), (the assifrnee)* and may have the 
smiDe relief against him, that he micht have had against the said B. (the 
bankrupt) in cane he had not lM^eome bankrupt, and for further and other 
relief.** Van Heyth. F^i. Drafts. 33U. 

3 3 Black. Comm. 108. 

4 Ante, 4 338, 329, 349 and note. 



S88 EQUITY PLEADINGS. [CH. VIII. 

of a plaintiff, or the marriage of a female plaintiff, all 
proceedings become abated.^ Upon the death of a 
defendant, likewise, all proceedings become abated as 
to that defendant.* But, upon the marriage of a fe- 
male defendant, the proceedings do not abate, although 
her husband ought to be named in the subsequent 
proceedings.' 

^ 354, a. A Bill of Revivor, properly so called, lies 
only by or against the persons, who are the proper 
representatives of the deceased party. If the suit re- 
spects the personal assets only of the deceased party, 
his executor or administrator is the proper party, by or 
against whom the revivor is to be. If the suit respects 
the real estate of the deceased party, his heir or heirs 
are the proper parties to the Bill of Revivor.* 

§ 355. It is highly probable, that the Bill of Revivor 
was borrowed from the Civil Law, or the Canon Law. 
If the party died pending the suit, by the Civil Law 
and the Canon Law the other party had a Citatio ad 
reassumendam causam. But then it was necessary to 
be made to appear to the judge by the proof, that the 
party was dead ; for it was not enough for the judge 
to know it in his private capacity ; but it was neces- 
sary, that it should be proved judicially to him. This 
process lay only against the heir of the defendant, and 
for the heir of the plaintiff, and so from heir to heir, 



1 Mitf. Eq. PI. by Jeremy, 57. 

8 Mitf. Eq. PI. by Jeremy, 57, 58; Cooper, Eq. PI. 63; Gilb. For. 
Rom. 175 - 178. It is said, that if a suit abates by the death of the de- 
fendant, the plaintiff may bring a new original suit, or a Bill of Revivor at 
his election ; for he may be able to make a better case than by his first 
Bill. Wyatt, Pr. Reg. 91 ; Spencer v. Wray, 1 Vern. 463; Anon. 3 
Aik. 485, 486 ; Nicoll 17. Roosevelt, 3 John. Ch. R. 60. 

3 Mitf. Eq. PI. by Jeremy, 68 ; Cooper, Eq. PI. 64 ; Gilb. For. Rom. 
174- 177 ; Wyatt, Pr. Reg. 90-92. 

* Post, § 364 ; Mitf. Eq. PI. by Jeremy, 69. 



CH. VIII.] BILLS OF REVIVOR. 389 

usque ad canclusionem in causd^ and even after sen- 
tence, to have execution of the sentence pronounced.^ 
We shall see, presently, how close the analogy is be- 
tween the subpoena to revive, and the Citatio ad reas- 
wmendam causam. 

^ 356. The death of one of the parties to a suit does 
not, in all cases, necessarily produce such an abatement 
of it, as to suspend all further proceedings ; but only 
when the interest of such party, or that which he rep- 
resents, survives.^ If the interest of a party dying so 
determines, that it can no longer affect the suit, and 
no person bc^comcs entitled thereupon to the same in- 
terest, (which hapi)ens in the case of a tenant for life, 
or a person having a t(*mix)rary or contingent interest, 
or an interest defeasible u{)ou a contingency,) the suit 
does not so abate, as to require any proceeding to 
warrant the prosecution of the suit against the remain- 
ing parties.' But, if the party so dying be the only 
plaintiff, or the only defendant, there will necessarily 
be an end of the suit, if there is no subject of litigation 
remaining.^ 

§ 357. If the whole interest of a i)arty dying survives 
to another party, so that no claim can be made by or 
against the represenuuives of the party dying ; as, if a 
Bill is filed by or against trustees or executors, and 
one dies, not having possessed any of the property in 
question, or done any act relating to it, which may be 
questioned in the suit; or, if a Bill is filed by or against 
husband and wife, in right of the wife, and the hus- 
band dies under circumstances, which admit of no de- 
mand by or against his representatives, the proceedings 



» Gilb. For. Rom. 17-2. 

* Cave V. <*ork, S Voiinpc & (oil. Nuw R. 130, 133. 

• Mitf. Eq. PI. by Jeremy, 5H, and raaes there cited ; ('oo|K;r, F^. PI. 
65 ; Gilb. For. Rom. 176. 

« Ibid. 



390 EQUITY PLEADINGS. [CH. Till. 

do not abate.^ So, if a surviving party can sustain the 
suit, as in the case of several creditors, plaintiffs on be- 
half of themselves and other creditors, the proceedings 
do not abate.* For the persons, remaining before the 
Court in all these cases, either have in them the whole 
interest in the matter in litigation, or at least are com- 
petent to call upon the Court for its decree,' 

^ 358. Upon the same principle, if two joint ten- 
ants exhibit their Bill, and one dies, this will not abate 
the suit as to the other ; for the whole interest belongs 
to the survivor.* But it is otherwise in the case of 
tenants in common ; for if one of them dies, the suit 
abates ; because his right descends to his representa- 
tives, who may revive.* And, although the proposition 
stated in our law books is true, that where a tenant in 
common dies, his representative may revive without 
the other ; yet it is true only in a qualified sense.® For 
where two tenants in common filed their Bill, and one 
died, and a Bill of Revivor was brought by his repre- 
sentative against the same defendants, without joining 
the surviving tenant in common, either as a co-plaintiff, 
or as a defendant, in the Bill of Revivor, it was decided, 
after a great deal of discussion, that, although the rep- 
resentative of the deceased tenant in common might 
revive without making the other a co-plaintiff; yet 
that, if he did so, he must make him a defendant.'^ 

1 Mitf. Eq. PI. by Jeremy, 58, 59. 

3 Ibid. 

3 Milf. Eq. PI. by Jeremy, 58, 59, and cases there cited ; Fallowes v. 
Williamson, 11 Ves. 306, 313. 
• * Cooper, Eq. Pi. 65 ; Boddy v. Kent, 1 Meriv. R. 364 ; Wright v. 
Dorset, 3 Ch. Rep. 66 ; Anon. 2 Freem. 6. 

5 Ibid. 

6 Ibid. 

7 Cooper, Eq. PI. 65, 66 ; Boddy v. Kent, 1 Meriv. R. 364; Fallowea 
V. Williamson, 11 Ves. 306, 313. The reasoning of Lord Eldop on this 
subject, in Fallowes v. Williamson, 11 Ves. 306, 309, 310, is so full and 



CH. VIII.] BILLS OF REVIVOR. 391 

§ 359. If there are several plaintiflfs, and the de- 
fendant dies, some of them may proceed to revive 



important in its explanationd of {general principles, that, although long, it is 
thought best to insert it at large in this place. *^ If, for want of author- 
ity," says he, ** 1 am to reason upon general principles, where joint 
tenants file a Rill, and by the death of one the interest survives, without 
doubt there is no abatement ; but the survivor may go on. But where 
the interest is that of tenants in common, there is prodigious difficulty and 
vast injustice in deciding, that if one dies, the re present at ives of that one 
may, without making tht'ir companion a co-plaintiff, revive. The first 
difliculty is of this sort. The plaintiffs in the Bill of Revivor suggest 
upon the Bill, that they .ire the represtMitatives, and that they stand in the 
place of the original plaintilT. The defendant u]>on this argument either 
is, or is not, at liberty to answer. Ifc certainly may show cause against 
the revivor in some way. Suppose he does not; and the representatives 
revive. If the co-plaintiff with the original plaintiff, deceased, dues not 
admit, that those persons are the representatives, what is there in the 
atate of the record, so put, authorizing the Court to say, the suit is re- 
vived, in that stage, until the surviving tenant in common has done some 
act acknowledging the relation, in respert of which he and the alleged 
representative agree, that there is a right to revive ? The surviving ten- 
aot in common must have some opportunity of doing that, lie may 
state, that he is filing a supplemental Bill to bring the real representative 
before the Court. If he i.s made a eo-plaiuiitf, by joining he admits the 
character of the representative. \hn suppose he knows the other is not 
the heir, that he is obliged to get on with his own suit ; and knows an- 
other person to l>e the hf^r ; without whom he cannot get on . what is 
there upon the record, where the Bill of Kevivnr iUwa not make the sur- 
vivor a co-plaintiff, to show, that he admits the rhanicter of the plaintiff 
reviving ^ Beyond that, there ih another dilfieulty, and a very iiii><.>hievou8 
consequence, in holding, that the rcpres«'iitaiives may revivt* without the 
original co-plaintiff; even if he does admit, that they are the repres<'iita- 
livea. Circumstane(>s may liavp taken place, from which the hur>'ivor 
may know, it would be trross injuMiec for him to pursue the suit ; and 
that the repn.'M'iitatives of the defeased tenant in rommtin kiuiw that. 
Suppose they revive ; and instead of a plea or demurrer the di-triHiantH 
state the objection by answer; and insist u|Hin it, as entitling them to the 
same benefit, as if it had bien by pb-a ; the cause iiii*!bt go to a hearing, 
when revived, in the absenei' of the original eo-plaintilf; and be may hi) 
engaged, and without Ins c<inM*nt, in further litigation, where he thinks it 
unrighteous ; and if ht- bad iH'en side plamtilf, miL'hl have denred to 
have his Bill dismissied with eoMs. In what nuNle then in he to eome, 
and say he will have nothing more to do with tht> suit; tor there must b» 
•ome form, in which he shall be at hl>erty to do so. On the one hand, 
there it great baxard of injustice, whether the alleged representatives are 



392 EQUITY PLEADINGS. [CH. VIII. 

Without the others, if they refuse ; for the obstinacy 
of some of the parties shall not hinder the rest from 
asserting their own interest. But in such cases, the. 
original plaintiffs, who refuse to join, should be made 
defendants in the Bill of Revivor.^ 

^ 360. If a man marries an administratrix, and a 
decree is obtained against him and his wife for a de- 
mand out of the assets, and the wife dies before the 
decree is executed, the suit is abated ; and the plain- 
tiff must revive it against the administratrix of the 
wife, before any further proceedings can be had in the 
cause against the husband ; for the assets of the wife 
are primarily liable to satisfy the decree.' 

80 or not ; and if it was to be considered originally, there is vast weight in 
the doubt, that has been referred to ; and upon general principles I should 
be disposed to hold, that the revivor ought to be by both ; for it is troe, as 
has been stated, that upon a revivor by scire facias all most join. It 
would be strange upon a scire facias to say, the ^proceedings were to be 
put in the same plight, not only as to the persons suing it out, and against 
whom it was sued out, but against persons, to whom it was not addressed, 
and having no knowledge of it. Next ; if the representatives are to file 
their Bill of Revivor, and that is only as to the interest of the deceased, 
though that Bill states the original cause as the cause of both, must not 
the two causes be joined, so that the Court can know, in which you are 
going on? It would be novel, and against the principle of pleading in 
Equity, that where the interest is entire, as to the subject of the suit, 
though divided in enjoyment, and the defendant might object for want of 
parties, that the Bill of the representatives should revive as to that suit, 
the interest of the other plaintiff not being abated ; and, therefore, the 
two causes are joined ; though the survivor may have no inclination to go 
on. What is revived ? The suit as to the interest of the deceased. But 
then it must, in the contemplation of the Court, be a proceeding at the 
suit of the survivor, as his interest is not abated ; and at the suit of the 
representative, standing in the place of the deceased. The consequence 
is, all subsequent process must be at the suit of both, and in a cause, enti- 
tled in the names of both.** ^^ 

1 Gilb. For. Rom. 176; Wyatt, Pr. Reg. 90, 94. 

2 Cooper, Eq. PI. 67, 76, 210; Jackson v. Rawlins, 2 Vern. R. 194 
and Railhby's note (2) ; Bachelor v. Bean, 2 Vern. R. 61 ; Sanderson v. 
Crouch, 2 Vern. R. 118. It would seem, from these cases, that the hus- 
band was not liable, except for the assets, of which he was possessed, or 
which came to his or the wife's hands, after the intermarriage. See also 
Norton v. Sprigg, 1 Vern. R. 309. 



CH. Vlli.] BILLS OF REVIVOR. 393 

^ 361. If, upon the death of the husband of a fe- 
male plaintiir, suing in her right, the widow docs not 
choose to proceed in the cause, the Bill is considered 
as abated, and she is not liable to the costs.^ If she 
thinks proper to proceed in the cause, she may do so 
without a Bill of Revivor ; for she alone has the whole 



1 Mitf. Eq. PI. by Jeremy, 59, GO, and cases there cited ; (lilb. For. 
Rom. 175, 176; Wyatt, Pr. Reg. 01, 02; Ante, § 01. I'pon this 
subject Mr. Cooper has rommented as follows ; "In the case of husband 
and wife suinp for a demand in right of the wife, though if the husband 
dicA, it is no abatement, as herein before mentioned, yet if they have ex- 
amined witnesses, and afterwards the husband dies, the wife is not bound, 
unless she choosps ; and she may file a new Kill and examine tht> same 
witnesses over again, as if no examination had ever taken place. Hut if 
tl|e Bill is brought against the husband and wife, where the wife's prop- 
erty is concerned, as if she is an executrix, and the defendant's answer 
sad witnesses are examined, and publication passi^s, and the husband 
lAerwards dies, it has been decided, that the wife shall be bound by the 
answer and depositions. Vpon this, I cannot help observing, that there 
seems an inconsistency in the princi[)]e, that the wife surviving should be 
bfwad by the answer and depositions, w hen she was defendant with her 
husband, but not by their Hill and de{M>Mtions, when they stotni in the 
character of plaintitFs. In the l:u«t mentioned case, the Court takes a flis- 
tinction, that, although the wife shall be l>ound by tbe answer and deposi- 
tions in a matter of personalty ; yet in case of the wit*e*s inheritance, it 
might be otherwise. Hut in another cast* the Master of the Rolls ^eems 
to have allowed a husband's answer, whereby he had confessed a settle- 
ment, to be read as evidence against the wife, though it was ins^isted. that, 
it being tbe case of the wile's inheritance, she was not bound by such 
evidence. And there seems an anomaly in another rule of pleading 
relatire to the alN>vcmentioned case of husband and wife, which is, that 
although where they exhibit their Hill for a demand in her right, and the 
husband dies, the wife, if she thinks [)ro|Hrr, may proceed in the cause 
without a Bill of Rev i\ or, .she alone having the wh(de interest, anil the 
whole advantage of tbe proceed inus surviviuir to her ; so mueb so, tbat 
if any judgment has been obtained, even fur costs, she will l>e «-ntitled to 
the benefit of it ; yet, if she does not choose to prucee<l in the cause, the 
Bill is considered as abated, and she is not liable to the costs. And thu 
case is the same, if a female plaintiff marries. |>ending a suit, and after- 
wards, before revivor, her husband dies ; for her incapacity to [»ro.H«-cut«) 
the suit is removed ; but the sul>se<iuent proceedings are in the name and 
description, which she has acquired by the marriage.** CiKiper, V^\. 
PI. 66, 67, and cases there cited. See <irant r. Van Schoonhovt^n, 
9 Paige, K. t255. 

EQ. PL. 50 



394 EQUITT PLEADINGS. [CH. VllU 

interest, and the husband was a party in her right, and 
therefore the whole advantage of the proceedings sur- 
vives to her ; so that if any judgment has been ob- 
tained, even for costs, she will be entitled to the ben- 
efit of it.^ But if she takes any step in the suit after 
her husband's death, she makes herself liable to the 
costs from the beginning.^ If a female plaintiff mar- 
ries pending a suit, and afterwards, before revivor, her 
husband dies, a Bill of Revivor becomes unnecessary, 
her incapacity to prosecute the suit being removed.* 
But the subsequent proceedings ought to be in the 
name and with the description, which she has acquired 
by the marriage/ 

^ 362. For the like reason, if the plaintiff, in a BiH 
of Interpleader, should die after a decree, that the 
defendants should interplead, there will be no abate- 
ment of the suit ; for by such a decree the suit is ter- 
minated as to the plaintiff, although the litigation may 
still continue between the defendants under the decree 
of interpleader ; and in that event the cause may still 
proceed, without any revivor against the representa- 
tives of the plaintiff.* 

^ 363. Whenever there is an Original Bill and a 
Cross Bill thereto, if an abatement takes place, there 
must generally be a Bill of Revivor in each cause. 
But if the Bills regard an account, and there is a 
decree for an account, the two causes become thereby 
so consolidated, that one Bill of Revivor, praying for a 
revivor of the whole, will revive both causes.^ 

^ 364. Having stated the cases, where a Bill of 
Revivor is not necessary, notwithstanding an interven- 

^ Ibid. 2 Ibid. 3 Ibid. 4 Ibid. 

5 Mitf. Eq. PI. by Jeremy, 60 ; Ante, ^ 297, a. 

« Cooper, Eq. PI. 64 ; Wyatt, Pr. Reg. 88; Hinde, Ch. Prao. 61 ; 
Gilb. For. Rom. 174. 



CH. viik] bills of revivor. 395 

ing death of one of the parties, let us now proceed to 
consider the cases, in which a Bill of Revivor is neces- 
sary and proper. Wherever a suit abaters by death, 
and the interest of the person, whose death has caused 
the abatement, is transmitted to that representative, 
which the law gives or ascertains, as an heir at law, or 
an executor or administrator, so that the title cannot 
be disputed, at least in the Court of Chancery, but the 
person, in whom the title is vested, is alone to be as- 
certained, the suit may be continued by a Bill of Re- 
vivor merely.' If a suit abates by the marriage of a 
female plaintiff, and no act is done to affect the rights 
of the party, but the marriage, no title can be disputed. 
The person of the husband is the sole fact to be ascer- 
tained ; and, therefore, the suit may be continued in 
this case, likewise, by Bill of Revivor merely.^ 

^ 365. In the case of a Bill brought by a creditor 
on behalf of himself and all other creditors, if he dies, 
the suit may he revived by his personal representative. 
If the latter does not choose to revive it, then any 
other creditor, at least any one, who has proved his 
debt under a decree before the Master, may, by a sup- 
plemental Bill, continue the cause, and proceed therein 
for the benefit of all the creditors.^ 

^ 366. When a suit Ix^came al)ated after a decree 
signed and enrolled, it was anciently the practice to 



» Mitf. Eq. PI. by Jfiremy, «1); rooj^or, Fai PI. 63, 01. 

* Mitf. Kq. PI. by Jeremy, Af), and cases there cited ; Gilb. Fur. Rom. 
175, 177, 189; Wyail, Pr. Reg, <H» ; Douglas r. Sherman, 2 Paige, R. 
358; Phelps V. Spruuh\ 1 Sim. 3H. 

• Milf. Kq. PI. by Ji'remy, 7SI, and note (/) ; Dixon v. Wyalt, 4 Madd. 
R. 393 ; Bumcy v. Mori;an, I Sim. & Stu. 35H; llouhlitch v. D(iiin4.f;al, 
1 Sim. R. 47U ; Davin r. Williams. I Sim. K. 5. It is oAen Kiid, that 
the crediuir in such a cane has a right to rrvtrt. But quvre, nhtrther the 
•uit in such m esse is technically abated ' Sec 1 Rq. Abridg. 'J, 3 
Cooper, Eq. PI. 65. 



396 EQUITT PLEADINGS. [CH. VIII, 

revive the decree by a subpoena in the nature of a 
scire facias^ upon the return of which, the party, to 
whom it was directed, might show cause against the 
reviving of the decree by insisting, that he was not 
bound by the decree ; or that for some other reason it 
ought not to be enforced against him ; or that the per- 
son, suing the subpoena, was not entitled to the benefit 
of the decree.^ If the opinion of the Court was in 
his favor, he was dismissed with costs. If it was 
against him, or if he did not oppose the reviving of the 
decree, interrogatories were exhibited for his examina- 
tion, touching any matter necessary to the proceed- 
ings.^ If he opposed the reviving of the decree on the 
ground of facts, which were disputed, he was also to 
be examined upon interrogatories, to which he might 
answer or plead ; and, issue being joined, and witness- 
es examined, the matter was finally heard and deter- 
mined by the Court.* But if there had been any pro- 
ceedings, subsequent to the decree, this process was 
ineffectual, as it revived the decree only, and the sub- 
sequent proceedings could not be revived except by 
Bill. The enrollment of decrees being now much 
disused, it is become the practice to revive in all cases, 
indiscriminately, by Bill.^ 

^ 367. A suit, which has become entirely abated, 
may be revived as to part only of the matter in litiga- 
tion, or as to a part by one Bill, and as to the other 
part by another. Thus, if the rights of a plaintiff in 
a suit upon his death become vested, a part in his real, 
and a part in his personal, representatives, the real 
representative may revive the suit, so far as concerns 



^ Mitf. £q. PI. by Jeremy, 69, 70, aad cases there cited ; Gilb. For. 
Rom. 177. 
» Ibid. 3 Ibid. 4 Ibid. 



CH. VIII.] BILLS OF REVIVOR. S97 

his tide, and the personal representative, so far as his 
demand extends.^ 

^ 368. Therefore, where the phiintiflf's intestate 
had obtained a decree against the defendant for pay- 
ment of a sum of money, and also for a conveyance of 
land and a delivery of deeds ; but before any thing 
was done upon it, he died intestate ; and the plaintiff, 
88 his personal representative, having revived the de- 
cree, the defendant objected, because the heir was not 
made a party, and a decree could not be revived in 
parts. But the Court held, tliat it was like a judg- 
ment at law in waste, where there may be two revi- 
vors, and they ordered the decree to be revived as to 
the personalty.^ 

§ d69. When there are several plaintiffs, or several 
defendants, all having an interest, which survives, the 
death of any one of them makes an abatement only 
as to himself, and the suit is continued as to the rest, 
who are living.' But if any thing is required to be 
done by or against the interest of the party, who is 
dead, his proper representative must be brought before 
the Court by a Bill of Revivor.* If some of the plain- 
lifb, entitled to a Bill of Revivor, refuse to join in it, 
they may be made parties defendant.' 

§ 370. If a decree is obtained against an executor 
for the payment of a debt of his testator, and of costs 
out of the assets, and the executor dies, and his repre- 
sentative does not become the representative of the 
testator, the suit may be revived against the represent- 



> Mitf. Eq. PI. by Jeremy, 79, 80 ; (;ilb. For. Rom, 174. 

* Cooper, Eq. PI. 71, and cases there cited ; Ferrers v. Cherry, 1 F^. 
Abridf. 4, pi. U. 

' Aata, $ 364. ^ Antr, ^ 361. 

^ Finch V. Winchclsea, 1 E(\. Abridg. 3, p]. 7 ; Nicoll v. Roosevelt, 3 
John. Ch. R. 60 ; Ante, ^ 35<J. 



398 EQUITY PLEADINGS. [CH. VIII. 

ative of the testator, and the assets may be pursued 
in his hands, without reviving against the represfenta- 
tive of the original defendant.^ 

^ 370, a. Where a Bill is filed by a plaintiff to re- 
vive a suit after a decree, and to prosecute the decree, 
it is not competent for the defendant in his answer to 
resist the revival by stating matter, which existed be- 
fore the decree, or which has arisen since ; and such 
matter, if stated, will be treated as impertinent.* The 
reason is, that if the facts existed before the decree, 
and the proper time for making them a part of the de- 
fence has been permitted to pass by, the omission can- 
not be supplied in this manner ; and if new matter 
has arisen since the decree, varying the situation of the 
parties, other means exist for bringing it forward. 
The right of a party to prosecute a decree, and to do 
what is necessary for that purpose, cannot depend 
upon the merits of the decree.* 

^371. It is a general rule, that no suit shall be re- 
vived for costs merely, unless such costs are taxed, and 
a report thereof made in the lifetime of the party.* 
But if costs are to be paid out of an estate, the suit 
may be revived for them. And the case is still strong- 
er, if a Bill of Revivor is brought for a duty and costs, 
although the costs are not taxed in the defendant's 
lifetime.^ 



1 Mitf. Eq. PI. by Jeremy, 78 ; Johnson v. Peck, 2 Ves. 465. 

9 Devaynes v. Morris, 1 Mylne & Craig, 213, 225 ; Post, ^ 376. 

3 Ibid. ; Ante, §332, 333, and notes ; Post, § 376, 423. 

^ Cooper, Eq. PI. 68; Gilb. For. Rom. 181 ; Wyatt, Pr. Reg. 93; 
Jenour r. Jenour, 10 Ves. 572. But see Morgan v. Scudamore, 2 Ves. 
jr. 315, 316 ; S. C. 3 Ves. 195 ; Glenham w. Stutwell, 1 Dick. 14; Dod- 
son V. Oliver, Bunb. R. 160 ; Blower v. Morrets, 3 Alk. 772 ; Kemp r. 
Morrell, 3 Atk. 812; Johnson v. Peck, 2 Ves. 465. But see Travis r. 
Waters, 1 John. Ch. R. 85. 

5 Ibid. 



CH. VIII.] BILLS OF REVIVOR. 399 

^ 371, a. A Bill of Revivor cannot properly be 
brought upon a Bill of Discovery merely, after the an- 
swer is put in and the discovery is made ; for in such 
a case the entire object of the Bill has been obtained ; 
and the plaintiff can have no motive for reviving it ; 
and the other party has no interest in reviving it.' 

^ 372. Hitherto we have lieen considering cases, 
where the plaintiff may revive. In some cases, a de- 
fendant, after a decree, is permitted to file a Bill of 
Revivor, if the plaintifl*, or those standing in his right, 
neglect to do it ; for then the rights of the |)arties are 
ascertained ; and the plaintiO* and the defendant are 
equally entitled to the benefit of the decree, and 
equally have a right to prosecute it.' But this rule 
must be taken with some qualification. Lord Ilard- 
wicke has expressly laid it down, that a defendant 
can revive only in one instance, and that is, after a 
decree to account ; for in that case both parties are 
actors.' But the principle has l)een, by subsequent 
decisions, extended to every case, in which the de- 
fendant can derive a benefit from the further [)roceed- 
ings.^ Thus, where the assignees of a bankrupt filed 
a Bill against a pc^rson, claiming as a mortgagee, and 
the title of tlie bankrupt was under a fine by a tenant 
in tail, as to whose legitimacy a question was made, 
and a decree was made, directing an issue, in which 
issue the verdict was against the le<;itimacy ; and then 



> Hofsburgv. Baker, 1 Pcirr«, K. 232, 23fi. Aftrr a dUcovpry is "b- 
Uined upon such a Hill, it in not proper to flismJMs the Bill ; but the (*tMirt 
•hould paaa an order, tliat no further procrc'diuj?* he had in the rauM. 
Ibid. 

« Cooper, Eq. PI. Oh. 

' Cooper, Rq. ?]. C*K ; Anon. 3 Atk. 69*2; Dcvaynea r. Morris, 1 Mylue 
A Creig, R. 213; Mitf. Kq. PI. by Jeremy, 4th edit., p. 7». 

4 Cooper, Eq. PI. U8; Miif. Ei\. PI. bv Jereinv,4th edit., p. 7i) and 

(9) 



400 EQUITY PLEADINOS. [CH. VIII. 

the mortgagee died, and his representatives filed a 
Bill of Revivor ; although it was objected on the behalf 
of the assignees, that a defendant cannot revive, ex- 
cept after a decree for an account ; yet the revivor 
was permitted.^ 

^ 373. Upon the same principle, there would seem 
to be no objection to a defendant's reviving the suit 
after a decree in the case of a Bill for the specific 
performance of an agreement, or for a partition, or 
for a trustee to convey the legal estate. But the 
defendant must, in all such cases, have an interest in 
the further prosecution of the suit. And, therefore, 
where his only object is to dissolve an injunction and 
proceed at law, the Court will not permit him to re- 
vive.* However, in a case, where the plaintiff*, after 
a decree to redeem certain mortgaged premises, filed 
his Bill of Revivor, but neglected to revive, on the 
time for the defendant's answering being out, the de- 
fendant was allowed to revive, and to carry on the 
decree under the plaintiff's Bill.^ 

^ 374. In regard to the frame of a Bill of Revivor, 
a brief statement may sufiice. A Bill of Revivor, 
then, must state the original Bill, or rather, who were 
the plaintiffs and defendants to it, and what its prayer 
or object was, and the several proceedings thereon, 
and the abatement.* It ought also to show the title 

1 Cooper, Eq. PI. 68; Williams v. Cooke, 10 Ves. 406 

2 Cooper, Eq. PI. 69. 

3 Cooper, Eq. PI. 68, 69, and the cases there cited; Mitf. Eq. PI. by 
Jeremy, 79; 1 Eq. Abridg. 2, 3 ; Wyatt, Pr. Reg. 92. 

4 The 49th Order of the English Orders of 1841, provides, "That it 
shall not be necessary in any Bill of Revivor, or supplemental Bill, to set 
forth any of the statements in the pleadings in the original suit, unless 
the special circumstances of the case may require it." The Supreme Court 
of the United States have adopted the same Rule. See Equity Rules of 
January Term, 1842, Rule 47, 1 Howard, R. Introd. p. 56 ; 17 Peters, 
App'x, p. 69. 



CH. VIII.] BILLS OF REVIVOB. 401 

of the plaintiff to revive the suit.^ It is, also, neces- 
sary to state so much new matter, and no more, as is 
requisite to show, how the plaintiff becomes entitled 
to revive, and to charge, that the c^use ought to be 
revived, and to stand in the same condition, with re- 
spect to the parties to the original Bill, as it was at 
the time when the abatement happened ; and it must 
praj, that the suit may be revived accordingly.* It 
may likewise be necessary in many cases to pray, that 
the defendant may answer the Bill of Revivor ; as in 
the case of an admission of assets, or an account of 
the personal estate being requisite from the represent- 
ative of a deceased party .^ In this latter case, if the 
defendant does admit assets, the cause may proceed 
against him upon an order of revivor merely.^ But 
if he does not make that admission, the cause must 
be heard for the purpose of obtaining the necessary 
accounts of the estate of the deceased party, to an- 
swer the demands made against it by the suit/ And 
the prayer of the Bill, therefore, in such a case usually 
is, not only, that the suit may be revived, but also, 
that in case the defendant shall not admit assets to 
answer the purposes of the suit, such accounts may 
be taken. And so far, the Bill is in the nature of an 

original Bill** Upon a ^ill of Revivor, the sole ques- 

» 

1 Phelps «• Sproulo, 1 Sim. R. 318 ; Vigers r. liOrd Audlcy, () Sim. R- 
78, 75; Milf. Eq. PI. by Jeremy, 70 ; Cooi)er, Vj(\. PI. 70. 

■ Cooper, Eq. PI. 70; Comyiis, Rep. 570 : Milf. Faj. PI. by Jeremy, 
76. 

» Cooper, Eq. PI. 70; Wyatr, Pr. Reg. 01 ; Milf. F^. PI. by Jeremy, 
76. 

* Ibid. 

* Cooper, Eq. PI. 70; Milf. Va\. PI. by Jeremy, 70. 

* Cooper, Eq. PI. 70, and cases ihere oiled ; (jitb. For. Rom. 173, 171 ; 
Wyatt, Pr. Rejr. !)1 -»l. This passage is ukcn by Mr. (*uoper almost 
literally from Lnnl Redesdnle's Tn^atitM! (Milf. Kq. PI. by Jeremy, 76, 
77). But the few words added by Mr. Toopcr, make the sense mure 

PL. 51 



402 EQUITY PLEADINGS. [CH. VIII* 

tions before the Court are, the competency of the par- 
ties to revive, or the correctness of the frame of the 



clear and definite, and I have therefore followed the latter. The follow- 
ing passage from Lord Redesdale's Eq. PI. 77, 78, may be useful to show 
the practice as to Bills of Revivor. *' Upon a Bill of Revivor," says he, 
" the defendants must answer in eight days afler appearance, and submit, 
that the suit shall be revived, or show cause to the contrary; and in de- 
fault, unless the defendant has obtained an order for further time to an- 
swer, the suit may be revived without answer, by an order made upon 
motion, as a matter of course. The ground for this is an allegation, that 
the time allowed the defendant to answer by the course of the Court is 
expired, and that no answer is put in. It is therefore presumed, that the 
defendant can show no cause against reviving the suit in the manner 
prayed by the Bill. An order to revive may also be obtained in like 
manner, if the defendant puts in an answer, submitting to the revivor, or 
even without that submission, if he shows no cause against the revivor. 
Though the suit is revived of course in default of the defendant's answer 
within eight days, he must yet put in an answer, if the BOl requires it. 
As, if the Bill seeks an admission of assets, or calls for an answer to 
the original Bill, the end of the order of revivor being only to put the suit 
and proceedings in the situation, in which they stood at the time of the 
abatement, and to enable the plaintiff to proceed accordingly. And not- 
withstanding an order for revivor has been thus obtained, yet if the de- 
fendant conceives, that the plaintiff is not entitled to revive the suit 
against him, he may take those steps, which are necessary to prevent 
the further proceeding on the Bill, and which will be noticed in treating 
of the different modes of defence to Bills of Revivor. And though these 
steps should not be taken, yet if the plaintiff does not show a title to re- 
vive, he cannot finally have the benefit of the suit, when the determina- 
tion of the Court is called for on the subject." He adds; "After a 
cause is revived, if the person reviving finds the original Bill to require 
amendment, and the pleadings are in such a state, that an amendment of 
the Bill would be permitted, if the deceased party were living, the Bill 
may be amended notwithstanding the death of that party ; and matters 
may be inserted, which existed before the original Bill was filed, and 
stated, as if the deceased party had been living." In Van Heythuysen's 
Equity Draftsman, 340-346, will be found the common forms of Bills of 
Revivor. The common prayer in the case of a Bill of Revivor on the 
death of the plaintiff, is : " To the end, therefore, that the said defendant 
may answer the premises, and that the said suit and proceedings, which 
so became abated as aforesaid, may stand revived, and be in the same 
plight and condition, as the same were in at the time of the death of the 

1 Bettes V. Dana, 2 Sumner, R. 383. 



CH. Vlll.] BILLS OF REVIVOR. 403 

§ 375. If a defendant to an original Bill dies before 
putting in an answer ; or after an answer, to which 
exceptions have been taken ; or after an amendment 
of the Bill, to which no answer has been given ; the 
Bill of Revivor, although requiring in itself no answer, 
must pray, that the person, against whom it seeks to 
revive the suit, may answer the original Bill, or so 
much of it, as the exceptions, taken to the answer of 
the former defendant, extend to, or as the amendment, 
remaining unanswered, requires.^ 

^ 376. Where a Bill of Revivor is brought by a de- 
fendant after a decree, it merely substantiates the suit, 
and brings before the Court the parties necessary to 
see to the execution of the decree, and to be the ob- 
jects of its operations, rather than to litigate the claims 
made by the several parties in the original pleadings, 
except so far as they remain undecided.^ 

§ 377. Fourthly ; a Bill in the nature of a Bill of 
Revivor. We have seen, that a Bill of Revivor, proper- 
ly so called, lies only in cases, where a death inter- 
venes, and it is necessary to bring the proper repre- 
sentatives of the deceased party in the realty or in the 
personalty before the Court ; or, where, by reason of the 



nid J. A., or that the said defendant may show f^ood cause to the con- 
trary ; May it please, &c/' In the case of the death of the defendant, it 
is M follows: *'Thcn;forc, that the said suit and proceedings, which be- 
cmme to abated by the death of the said S. N., may stand and be rovivod 
agiiDit the nid T. R., and be in the same plight, state, and condition, as 
the same were in at the time of the abatement thereof. And that plain- 
tiff may hare the benefit thcntof; or that the said defendant T. R. may 
•bow csuae, why the said suit and proceedings should not be so revived, 
and that the same may be revived accordingly.** Van. Hcyth. Eq. 
Drafts, 341,342. 

> Blitf. Eq. PI. by Jeremy, 76, 77, and cases there cited; Cooper, Eq. 
PI. 70, 71. 

* Mitf. Eq. Pi. by Jeremy, 79, and cases there cited ; Cooper, Eq. Pi. 
71 ; Devaynes v. Morris, 1 Mybe Si Craig, 313, 8S5 ; Ante ^ 370, a. 



m 

404 EQUITY PLEADINGS. [CH. VIII. 

marriage of a female plaintiff, her rights are so modi- 
fied, that the suit cannot be carried on by herself alone, 
but her husband becomes a necessary party .^ In each 
of these cases, there is no other fact to be ascertained, 
than whether the new party brought before the Court 
has the character imputed to him. If he has, the revi- 
vor is of course.^ But there are many cases, in which 
there are other facts, which may be brought into litiga- 
tion, besides the mere question of the character of the 
new party ; and to such cases, therefore, the simple 
Bill of Revivor does not technically apply. Under 
such circumstances, an original Bill, in the nature of 
a Bill of Revivor, is the appropriate process to bring 
those facts before the Court, and to put the original 
proceedings again in motion, and to enable the new 
party to have the benefit of the former proceedings.* 

^ 378. Thus, if the death of a party, whose interest 
is not determined by his death, is attended with such 
a transmission of his interest, that the title to it, as 
well as the person entitled, may be litigated in the 
Court of Chancery, as in the case of a devise of a real 
estate, the suit is not permitted to be continued by a 
Bill of Revivor. An original Bill, upon which the tide 
may be litigated, must be filed. And this Bill will 
have so far the effect of a Bill of Rievivor, that if the 
title of the representative substituted by the act of the 
deceased party is established, the same benefit may be 
had of the proceedings upon the former Bill, as if the 
suit had been continued by a Bill of Revivor.^ 



1 Ante, § 364; Cooper, Eq. PI. 64. 9 Ibid. 

3 Miif. Eq. PI. by Jeremy, 71, 97 ; Wyalt, Pr. Reg. 90, 91 ; Attor- 
ney-General V, Foster, 2 Hare, R. 80, 93, 94 ; Ante, § 350 ; Post, § 379. 

* Mitf. Eq. PI. by Jeremy, 71 ; Id. 97, and cases there cited ; 1 Eq. 
Abridg. 2, 3 ; Clare v. Wordell, 2 Vem. 548 ; S. C. 1 Eq. Abridg. 3, 
pi. 3; Wyatt, Pr. Reg. 90; Joaes v. Jones, 3 Atk. 217; Douglas v. 



^.j 



CH. VIII.] BILLS OF REVIVOR. 405 

^ 379. The ground of this distinction betwt^en Bills 
of Revivor, and Bills in the nature of Bills of Revivor, 
seems to be, that the former, in case of death, are 
founded upon mere privity of blood or representation 
by operation of law ; the latter, upon privity of estate 
or title by the act of the party.* In the former case, 
nothing can be in contest, except whether the party be 
the heir or {>ersonal representative ; in the latter, the 
nature and operation of the whole act, by which the 
privity of estate or title is created, is ojien to contro- 
versy.* Thus, for example, the heir may be made a 
party by a Bill of Revivor; for his title is by mere 
operation of law. But the devisee must come in by a 



ShemuiD, 9 Paige, R. 358. I^rd Redcsdale repeats the same proposition, 
with tome alight alterations, in p. 07 of his Treatise. His language 
there is: '* It has been already mentioned, that when the interest of a 
party dying is transmitted to another in such a manner, that the tran»mis- 
aicm may he litigated in this Court, as in the case of a derise, the suit 
cannot he reTived by or against the {person, to whom the interest is so 
transmitted; but that such person, if he succeeds to the interest of a 
plaintiff, is entitled to the benefit of the former suit ; and if he succeeds 
to the interest of a defendant, the plaintiff* is entitled to the benefit of the 
former suit against him ; and that this benefit is to be obtained by an 
original Bill in nature of a Bill of Revivor." 

" Wyatt, Pr. Reg. 90. 

' This subject is discussed at large in Slack v. Walcott, 3 Mason, R. 
506, to which the learned reader is refened. Gilbert, in his Forum Ro- 
manam, 179, states the reastms thus: ''This 8ubi>cena is only for the 
heir, executor, or administrator, who came in in privity, as they call it, 
that is in immediate representation to the party litigant deceased ; for a 
devisee or assignee of any plaintiff* cannot have subpcpna ad revivrnJum 
aAer the decease of such plaintiff. And this is for two reasons. First, 
because they looked upon a suit tu be a chose in action, which was not 
assignable over for fear of maintenance. But this reason has been long 
sinee obsolete in the Court of ( -haneery, where they allow the assign- 
■leot of such interest. But the scrond and better reason is, becauM*, 
wheie the party devises, or assigns his interest, and dies ; if the devisee 
or assignee were to bring his Bill of Revivor against the defendant, the 
heir or executor would be pretermitted, who might have a right to con- 
test such disposition, and therefore he must bring his original Bill, and 
make the heir or executor a party.** 



406 EQUITT PLEADINGS. • [CH. VIIU 

Bill in the nature of a Bill of Revivor ; for he comes in 
as a purchaser under the testator, in privity of estate 
or title, which may be disputed.^ So, where new 
trustees to a charity are appointed upon the death or 
resignation of the old trustees, a Bill in the nature of 
a Bill of Revivor must be brought, to make them par- 
ties; for otherwise, if not made parties, they. will not 
be bound by the decree.^ 

§ 380. The Bill is said to be original, merely on ac- 
count of the want of that privity of title between the 
party to the former Bill and the party to the latter Bill, 
although claiming the same interest, which would have 
permitted the continuance of the suit by a Bill of Re- 
vivor.* Therefore, when the validity of the alleged 
transmission of interest is established, the party to the 
new Bill will be equally bound by, or have advantage 
of, the proceedings on the original Bill, as if there had 
been such a privity between him and the party to the 
original Bill, claiming the same interest.^ And the 
suit is considered as pending from the filing of the 
original Bill, so as to save the statute of limitations, to 
have the advantage of compelling the defendant to an- 
swer, before an answer can be compelled to a cross 
Bill, and to have every other advantage, which would 
have attended the institution of the suit by the origi- 
nal Bill, if it could have been continued by a Bill of 
Revivor merely.* 

^381. In the case of the marriage of a female 
plaintiff, the husband comes in by what may properly 

1 Cooper, Eq. PI. 63, 69, 77 ; Gilb. For. Rom. ch. 9, p. 172 ; Wyatt, 
Pr. Reg. 90 ; 1 Eq. Abridg. 2 B. pi. 1 ; Harrison v. Ridley, 2 Eq. 
Abridg. 3 ; S. C. Comyns, R. 589; Douglas v. Sherman, 2 Paige, 368. 

2 Attorney-General v. Foster, 2 Hare, 81, 93 ; Ante, ^ 350 ; Mitf. Eq. 
PI. by Jeremy, 71, 97, 4th edit. ; Post, § 384, note. 

3 Mitf. Eq. PI. by Jeremy, 97, 98. ^ Ibid. 
5 Mitf. Eq. PI. by Jeremy, 97, 98, and cases there cited. 



en. VIII.] BILLS OF REVIVOR. 407 

be called a privity of representation, by operation of 
law, upon the marriage.' If, on the marriage, her 
property becomes vested by a settlement in trustees, or 
if any third person, such as trustees, or issue, are made 
interested in it, a mere Bill of Revivor will not do ; but 
the interest of such third persons must be brought for- 
ward by an original Bill, in the nature of a supplemen- 
tal Bill and a Bill of Revivor.^ 

^ 382. So, if an administrator obtains a decree in a 
suit ; but before there is a complete execution of it, he 
dies ; the administrator de bonis non cannot revive the 
suit, so as to have the benefit thereof by a Bill of Re- 
vivor ; because he comes not in privity under the ad- 
ministrator, who obtained the decree, but paramount 
to him. He represents the intestate, and not merely 
the former administrator.' The true mode of obtain- 
ing the benefit of the decree in such a case would 
seem to be by an original Bill in the nature of a Bill 
of Revivor.^ 



1 Ante, i 354. 

« See Cooper, Eq. Pi. C4, 77; Post, ^ 387; Mitf. Kq. PI. by Jeremy, 
70, 71 : Merrywether r. Mellish, 13 Ves. IGl, 163. 

» Cooper, Bq. PI. 07, 70, 210. See Phelps v. Sproule, 4 Sim. R. 318. 
The ease of Owen r. Curzon, 2 Vera. 237, as reported, seems the other 
wmy. Bat Mr. Cooper says he has examined the record, and the demur- 
rer was allowed. (Cunpcr, Kq. PI. 67, 70, 210, and notes ibid.) Mr. 
Raithby, in his note (1) to the case in 2 Vera. 237, confirms Mr. Cooper*8 
■Utemeot. See S. C. 1 F^. Abridg. 3, pi. 0. The statute of 30 Ch. II. 
e. 6, prorided, that an administrator de ftonts non may sue a »rirc facias, 
and take eiecution upon a judgment had in the name of an executor ur 
former administrator. By analogy, an original Hill in the nature of a Dill 
of RcTJror, would sefni to lie in l*l<]uity. See Hupf^ins v. York Iluildinffs 
Co. 9 Eq. Abridg. 3, pi. 11, whore it is said, a Ilill of Revivor would lie 
in aaeh a case. But qua* re, if it is not an inaccurate expression, and in- 
tended for a Bill in the nature of a Bill of Revivor, ui>on the analogies 
■taied in the text* 

♦ Huggins V. York Buildings Co. 2 F>i. Abridg. 3, pi. 14 ; Cooper, F^. 
PI. 76; Mitf. Eq. PI. by Jeremy, 64, note (r), and Phelps v, Sproule, 4 
I. R. 318. 



J/ 



408 EQUITY PLEADINGS. [CH. VIII. 

^ 383. So, in the case of a Bill against executors 
for an account, if after the usual decree for an account, 
one of the executors becomes bankrupt, the suit is in 
the same state, as if abated ; and his assignees cannot 
proceed in the account, until they have revived the suit 
by a supplemental Bill in the nature of a Bill of 
Revivor.^ 

§ 384. It has been remarked by Lord Redesdale, 
that there seems to be a difference betvi^een an orig- 
inal Bill in the nature of a Bill of Revivor, and an 
original Bill in the nature of a supplemental Bill. 
Upon the first, the benefit of the former proceedings is 
absolutely obtained ; so that the pleadings in the first 
cause, and the depositions of witnesses, if any have 
been taken, may be used in the same manner, as if 
filed or taken in the second cause ; and if any decree 
has been made in the first cause, the same decree shall 
be made in the second. But in the other case, a new 
defence may be made ; the pleadings and depositions 

1 Russell V. Sharp, I Ves. & Beam. 500. See Randall v. Mumford, 
18 Ves. 424. In the statement of this proposition, I have followed the 
language of the register and counsel in the case of Russell v. Sharp, 1 
Ves. & Beam. 500. See also Porter v. Cox, 4 Madd. R. 80. Lord Eldon, 
in Randall v. Mumford, 18 Ves. 427, seemed to doubt, whether the suit 
was abated or not; and he hesitated, as to what name should be given to 
the Bill. His language was : ** This Court, however, without saying, 
whether bankruptcy is, or is not, strictly an abatement, has said, that ac- 
cording to the course of the Court, the suit is become as defective, as if it 
was abated. And, as the assignees will have the benefit of the suit, and 
assuming in practice, that he who is a bankrupt, will continue so, the 
course, which the Court has taken, is to require him to bring his assignees 
before it by Bill of Revivor, or supplemental Bill in the nature of a Bill 
of Revivor, or by whatever name it is called.'' At present it seems un- 
derstood, that by the bankruptcy of a party the suit is not abated, and 
therefore, technically, a revivor is not necessary; but an original Bill, in 
the nature of a supplemental Bill. See Cooper, Eq. PI. 76, 77; Mitf. 
Eq. PI. by Jeremy, 65 and note (0, 9S; Sellas v, Dawson, 2 Anst. 458, 
note; Davidson v. Butler, 3 Anst. 460, note; Harrison v. Ridley, Com. 
R. 589. 



CH. VIIlJ BILLS OF REVIVOR. 409 

cannot be used in the same manner, as if filed or ta- 
ken in the same cause ; and the decree, if any has 
been obtained, is no otherwise of advantage, than as 
it may be an inducement to the Court to make a sim- 
ilar decree.^ 

^ 385. A Bill in the nature of a Bill of Revivor 
or Supplement cannot be brought except by some per- 
son, who claims in privity with the plaintiff in the 
original Bill. Thus, for example, if a Bill is filed by a 
devisee under a will, and afterwards a subsequent will 
is proved, by which the same property is devised to 
another devisee ; in such a case, the later devisee can- 
not, by a Bill in the nature of a supplemental Bill, 
avail himself of the proceedings in the original suit ; 
for there is no privity between the plaintiff in the 
original suit, and the plaintiff in the supplemental Bill. 
Bat if the Bill had been filed by the devisor himself 
for some matter touching the estate devised, then the 
second devisee might file a supplemental Bill in the 
nature of a Bill of Revivor, notwithstanding the first 
devisee has already filed such a Bill ; for he derives 
his title solely from the devisor, independently of the 
first devisee.' 

§ 386. An original Bill in the nature of a Bill of 
Revivor should generally state the same facts, as a Bill 
of Revivor. It should state the original Bill, the pro- 
ceedings upon it, the abatement, and the manner, in 
which the interest of the party dead has been trans- 



' Mitf. Eq. PI. by Jeremy, 7d, 73, and cases there cited. See also 
Uoyd V. Johnea, Yes. 37, &r. ; AtUimcy-Ciieiicral v, Foster, 9 llarr, R. 
SO, 93, 04. Mr. Vice-Chanrellor Wifrram in this last case adverted to 
the diatinction between a Bill in the nature of a Bill of Supplement, and 
a Bill in tlie nature of a Bill of ReviTor and Supplement. See Ante, 
$350. 

9 OUlwmv. Eboral, 1 Coop. Set. Cas. 97; Rylands v. Latouche, 9 
Bligh, R. 586 ; Tonkin v. Lethbridge, Coop. £q. R. 43. 

EQ. PL. 52 



410 EQUITY PLEADINGS. [CH. VIII. 

mitted. It should also charge the validity of the trans- 
mission, and state the rights, which have accrued by 
it.* The Bill should also pray, that the suit may be 
revived, and the plaintiff have the benefit of all the 
former proceedings thereon.^ 

§ 387. Fifthly^ a Bill of Revivor and Supplement. 
This Bill is a mere compound of the two preceding 
species of Bills, and in its separate parts it must be 
flamed and proceeded upon in the same manner/ It 
becomes proper, where not only an abatement has ta- 
ken place in a suit, but defects are to be supplied, or 
new events are to be stated, which have arisen since 
the commencement of the suit.^ Thus, if a suit be- 
comes abated, and by any act besides the event, by 
which the abatement happens, the rights of the parties 
are affected, as by a settlement, or a devise, under cer- 
tain circumstances, although a Bill of Revivor merely 
may continue the suit, so as to enable the parties to 



1 Mitf. Eq. PI. by Jeremy, 97; Phelpa v. Sproule, 4 Sim. R. 318. 

3 The following is the fonn of the prayer of an orginal Bill in the na- 
ture of a Bill of Revivor, where a Bill to foreclose a mortgage was 
brought, and the defendant died, afler a decree referring it to a Master, 
&.C., leaving a will, under which the equity of redemption was supposed 
to be devised, and the present Bill was brought against the heir and the 
devisees. ** And that in case it shall appear, that the equity of redemption 
of the said mortgaged premises descended upon the death of the said T. 
H. to the said W. H., then that the said suit and proceedings therein may 
stand, and be revived against the said W. H., and be in the same plight 
and condition, as the same were in at the time of the abatement thereof. 
But in case it shall appear, that the said equity of redemption was devised 
to the said R. L. and B. J., then that the said decree, made on the hear- 
ing of this cause, may be prosecuted and carried into full effect against 
them the said R. L. and B. J., in the same manner, as the same might 
have been prosecuted against the said late defendant, T. H. ; and that all 
necessary directions may be given for effectuating the several matters 
aforesaid; May it please, &c." Van Heyth. Eq. Drafls. 348. 

3 Mitf. Eq. PL by Jeremy, 80 ; Cooper, Eq. PI. 84. 

4 Cooper, Eq. PI. 84; Pendleton v. Fay, 3 Paige, R. 204 ; Wescott o. 
Cady, 5 John. Ch. R. 343. 



CH. Till.] CROSS BILLS. 411 

prosecute it ; yet to bring before the Court the whole 
matter necessary for its consideration, the parties must, 
by supplemental Bill, added to and made part of the 
Bill of Revivor, show the settlement, or devise, or other 
act, by which their rights are affected. And, in the 
same manner, if any other event, which occasions an 
abatement, is accompanied or followed by any matter 
necessary to be stated to the Court, either to show the 
lights of the parties, or to obtain the full benefit of the 
suit, beyond what is merely necessary to show, by or 
against whom the cause is to be revived, that matter 
must be set forth by way of supplemental Bill, added 
to the Bill of Revivor.^ 

fj 388. We come, in the next place, to the consid- 
eration of the remaining class of Bills not original, viz. 
Bills, which although occasioned by, or seeking the ben- 
efit of, a former Bill, or of a decision made upon it, or 
attempting to obtain a reversal of a decision, are yet 
not considered as a continuance of the former Bill, but 
are in the nature of original Bills.^ They are, in truth, 
of a mixed character, partaking partly of the character 
of original Bills, and partly of that of Bills not orig- 
inal.' This class includes six kinds. (1.) Cross Bills. 
(2.) Bills of Review. (3.) Bills in the nature of Bills 



« Ifkr. Eq. PI. by Jeremy, 70, 71 ; Cooper, K(\. PI. 64 ; Mcrryweiher 
t. Mellish, 13 Vcs. 161, 163, 435. Lord Uedcsdalc has put thU illustra- 
tioo umler the head of a Dill of Revivor and Supplement. Is it not rather 
■o original Bill in the nature of a Bill of Revivor and Supplement, since 
it brings forward new interests 1 See Ante, $ 345, 346. 

• Mitf. Eq. PI. by Jen;my, 33; Ante, ^ 16, 20, 336. 

' Ante, ^ 16, 30; Cooper, Kc\. PI. 63. Lord Rcdesdale has arranged 
in this elass, (1.) Bills in the nature of Bills of Revivor, and (3.) Bills 
in the nature of supplemental Bills. (Mitford, Eq. PI. by Jeremy, HO.) 
I hav« preferred the arrangement of Mr. Cooper (Eq. PI. 63), which in- 
elndea them in the former class, as more convenient in a practical view, 
tbongh that of Lord Redesdale may be more exact and accurate in a sci- 
entifie view. Ante, } SO, 31. 



412 EQUITY PLEADINGS. [CH. YtU* 

of Review. (4.) Bills to impeach decrees for fraud. 
(5.) Bills to suspend or avoid the operation of decrees. 
(6.) Bills to carry decrees into execution.^ Of these 
we shall treat in their order. 

^ 389. And first of Cross Bills. A Cross Bill, ex m 
temdnarumj implies a Bill brought by a defendant in a 
suit against the plaintiff in the same suit, or against 
other defendants in the same suit, or against both, 
touching the matters in question in the original Bill.' 
A Bill of this kind is usually brought, either (1.) to ob- 
tain a necessary discovery of facts in aid of the defence 
to the original Bill, or ( 2.) to obtain fufi relief to all 
parties, touching the matters of the original Bill.' 

^ 390. The former case (a Cross Bill for discovery) 
arises from a settled rule in Equity, that the plaintiff 
in a suit cannot be examined as a witness in that suit; 
and if his testimony is wanted by the defendant as to 
any material facts, it must be by a Cross Bill.^ It has 
been well remarked, that, in the transactions of human 
life, it frequently happens, that the leading facts of the 
ease are known only to the acting parties ; and it is, 
therefore, of essential service to the cause of truth and 
justice, that the defendant in a suit should be enaUed 
to interrogate the plaintiff on his oath, as to the sub- 
ject-matter in dispute between them.* The Cross Bill, 
therefore, gives a perfect reciprocity of proof taeach 
party, derivable from the answers of each other. And 
on this account the right to file a Cross Bill is not con- 
fined to cases between private persons ; for if a foreign 

1 Mitf. Eq. PI. by Jeremy, 80 ; Cooper, Eq. PI. 62. 
8 Mitf. Eq. PI. by Jeremy, 80, 81 ; Cooper, Eq. PI. 85 ; 1 Mont. Eq. 
PI. 327. 328; Post, § 392, 396. 

3 Mitf. Eq. PI. by Jeremy, 81 ; Piggott v. Williams, 6 Madd. R. 95 ; 
Cooper, Eq. PI. 85. 

4 Mayor of Colchester v. , 1 P. Will. 595. 

5 1 Smith, Ch. Pr. ch. 2, p. 67 ; Gordon v. Gordon, 8 Swanst. 474. 



CH. Till.] CROSS BILLS. 413 

sovereign brings a Bill, the defendant may file a Cross 
Bill against him for a discovery of matters material to 
his defence.^ The importance of a Cross Bill, for the 
purpose of discovery, may be illustrated by a familiar 
example. It is a general rule, that if a defendant 
wants a discovery of any deed in the hands of the 
plaintiffi he must file a Cross Bill for the purpose, al- 
though the plaintiff should state in his Bill, that the 
deed is in Ids custody, and ready to be produced as the 
Court shall direct.^ Now, that very deed may furnish 
the main grounds of establishing the defence to the 
original Bill. 

§ 391. The latter case (a Cross Bill for relief) may 
occur, when the original Bill is brought for the specific 
perfbrmance of a written contract, which the defendant 
at the same time insists ought to be delivered up or 
cancelled. Under the original Bill no such relief could 
be had; and, even if the plaintiff should fail in ob- 
tainiDg a decree under his original Bill for a specific 
performauce of the contract, he might, notwithstand- 
ing, afterwards bring his action at law for damage sus- 
tained by him by the non-performance. It may, there- 
fore, be necessary for the defendant, in order to his 
protection against any such harassing suits, to file a 
Cross Bill for the purpose of having the contract de- 
livered up or cancelled.^ 

^ 391, a. So, if a Bill should be brought by one 
tenant in common of the legal estate against another 
for a partition ; it would be a good defence by the lat- 

1 Rothachild v. Queen of Portu^ral, 3 Youn^c 6i Coll. 5D1. 

■ Spragg 9. Corner, 2 Cox, R. KM). 

' Cooper, Eq. PI. Hr^, 86. IJiil sec Hilton v. Barren, I \vn. jr. 28^1, 
where Lord Rosslyn said niirh a Hill was not a pure Cnnw Bill. Si-e 1 
Daniel], Ch. Prart. 513, .'ilL citing Lindsey r. Lynch, 2 Sch. & I^'fr. 9 ; 
Woolam 9. Heam, 7 VeH. 2*J2 ; DcnniBton v. Little, 3 Sch. Sl Lefr. 11, 
note, 114, note (s) ; 8 Story on llq. Jurisp. $ 771. 



414 EQUITY PLEADINGS. [CH. VIII. 

ter, that he had acquired a good equitable tide to the 
whole premises. But, if he should farther wish to 
have affirmative relief on his part, and a decree, that 
the plaintiff shall convey his legal tide to him (the de- 
fendant) in conformity to his equitable tide, he must 
file a Cross Bill for the relief; for under the Bill for a 
partition no such relief could be had.^ 

^ 392. It also frequently happens, and particularly, 
if any question arises between two defendants to a 
Bill, that the Court cannot make a complete decree 
without a Cross Bill, or Cross Bills, to bring every mat- 
ter in dispute completely before the Court, to be liti- 
gated by the proper parties^ and upon the proper proofs. 
In such a case, it becomes necessary for some one or 
more of the defendants to the original Bill to file a 
Cross Bill against the plaintiff and some or all of the 
other defendants in that Bill, and thus to bring the 
litigated points fully before the Court.^ 

^ 393. As this species of Bill is a mode of de- 
fence, a defendant is sometimes of necessity obliged 
to resort to it in cases, where, by the rules of plead- 
ing in Equity, he would not be able to avail himself 
of the matter of his defence in any other way. Thus, 
if the matter of defence arises after the cause is at 
issue, as if the plaintiff has given the defendant a 
release, or if there has been an award made on a 
reference after issue joined, or perhaps in case of the 
defendant's bankruptcy, if he has obtained his certifi- 
cate after issue joined, (all of which at law may be 
made the subjects of a plea puis darrein continuance^) 
a defendant in Equity cannot avail himself of either 



1 German v. Mackln, 6 Paige, 288. 

2 Mitf. Eq. PI. by Jeremy, 81 ; Cooper, Eq. PI. 85 ; Pattison v, Hull, 
9 Cowen, R. 747 ; 1 MoDt. Eq. PI. 327, 328. 



CH. VIII.] CROSS BILLS. 415 

of these defences by plea or answer, and therefore he 
must make them the subject of a Cross Bill.^ Thus, 
where, pending a suit, and after replication and issue, 
the defendant, having obtained a release, attempted to 
prove it vivd voce at the hearing, it was determined, 
that the release not being in issue in the cause, the 
Court could not try the fact, or direct a trial at law 
for that purpose, and that a new Bill must be filed to 
put the release in issue.^ In the case before the Court, 
indeed, the Bill, directed to be filed, seems to have 
been intended to impeach the release upon the ground 
of fraud or surprise, and therefore to have been a 
proceeding on the part of the plaintiff in the original 
Bill. But it was clearly determined, that without 
being put in issue in the cause by a new Bill, it could 
not be used in proof.^ 

^ 394. A Cross Bill is now unnecessary in some 
cases, in which it was formerly required. As, for 
example, if a Bill is filed for the specific perform- 
ance of an agreement, and the defendant should in- 
sist upon a different agreement from that stated by 
the plaintiff in the Bill, and should offer to perform 
the specific agreement, which he represents to have 
been made ; the old course would have required, that 
the defendant should file a Cross Bill, to entitle him- 
self to a decree for the performance of the agreement 
as set up and proved by the defendant. But this 
would now be unnecessary; because the Court will, 
under such circumstances, at his request, decree a 



> Cooper, Eq. PI. Ml, 87, and rsMs there cited ; Mitf. Eq. PI. by Jere- 
my, Bs) ; Hayne v. Hayno, 3 Ch. U. 19. Sec Ante, $ 337, in what cases 
new matter, or newly diHrovcrcd evidence, occurring after the Dill, ran bn 
bioaght forward by a siipplpnicnul Dill. Darrington 9. 0*Dnen, 2 Dall 
A Beat. 140. 

• Ibid. 3 Ibid 



416 EQUITY PLEADING?. [CH. VIIT. 

specific performance of the agreement, actually set up 
and established in the defence.^ 

^ 3%. It is a general rule, that a Cross fiill must be 
brought before publication has passed in the original 
cause, unless the plaintiff in the Cross Bill will go to 
the hearing upon the depositions and proofs already 
published.^ This rule is established to prevent the 
danger of perjury, and the subornation of perjury, in 

1 Cooper » Eq. PI. 86, 86; 2 Story on Equity Jurisp. § 770; Fife v. 
Clayton, 13 Yes. 546. In this case of Fife v. Clayton, 13 Yes. 546, 
the plaintiff wished to dismiss the Bill, and the defendant insisted upon 
ike specific performance of the agreement, stated in his answer and 
proved by himself; and therefore the averment of his willingiMsi to 
perform it was relied on by his counsel, who cited Scott v. Stapylton, 
13 Yes. 425, as in point, where the Master of the Rolls dismissed the 
Cross Bill of the defendant with costs, considering it as unnecessary, as 
the Court would, upon the answer, have decreed a specific perfonnaooe 
of what was the real agreement, the defendant submitting to perform the 
agreement. On this occasion Lord Chancellor Eldon said; ''The old 
course required a Cross Bill ; but I am willing to follow a precedent, thai 
will save expense, and is right upon principle, the plaintiff by his Bill of- 
fering to perform the specific agreement, which he represents." And a 
specific performance was decreed with costs. The case, therefore, was 
one where the defendant submitted to perform the agreement set up and 
proved by himself. But if the plaintiff had wished the agreement, as ad- 
mitted by the defendant, to be specifically performed, it seems, that he 
would not have been permitted to have a decree for it, as it was not the 
case stated in his Bill. See Sugden on Yendors, 7th edit. 217 ; Sugdea 
on Yendors, ch. 4, note (b), lOth edit.; Higginson ». Clowes, 15 Yes. 
625; Clowes v. Higginson, 1 Yes. & Beam. 524; Lindsay v. Lynch, 2 
Sch. & Lefr. 1 ; Legal v. Miller, 2 Yes. 299 ; Legh v. Haverfield, 6 Yes. 
452 ; Woolam v. Hearn, 7 Yes. 211. The proper course in such a case 
would seem to be, for the plaintiff to amend his Bill upon the coming in 
of the defendant's answer ; or to have his Bill dismissed without preju- 
dice at the hearing. See Ibid, and Deniston v. Little, cited* in the note to 
2 Sch. & Lefr. 11. Where a plaintiff brings a Bill for an account and 
allowances in that account, the defendant has a right to make objections 
to it in the same way, as if he had brought a Cross Bill. Ayliffe v. Mar- 
ray, 2 Atk. 59. 

2 Cooper, Eq. PI. 87; 1 Eq. Abridg. G. 8, pi. 1, p. 80; Bassett «. Nes- 
worthy. Rep. Temp. Finch, 102, 103; White v, Buloid, 2 Paige, R. 164; 
Field V. Schieffelin, 7 John. Ch. R. 250; Sterry v. Arden, 1 John. Ch. 
R. 62 ; Gouverneur ». Elmeudorf, 4 John. Ch. R. 357. 



CH. VIII.] CROSS BILLS. 417 

case the parties should, after the publication of the 
former depositions and proofs, be permitted to examine 
witnesses de novo to the same matters, to which they 
or others have been already examined.^ However, 
publication will be enlarged, or (perhaps more proper- 
ly speaking) postponed, for the purpose of enabling 
die defendant to file a Cross Bill, upon a special appli- 
cation, showing sufficient grounds to the Court for 
making such an order. And when an original Bill 
and Cross Bill arc both filed, both causes commonly 
proceed to be heard together, which could not be 
done, if the Cross Bill were filed after publication in 
the original cause, unless the Cross Bill were heard on 
the Bill and answer.' 

§ 396. But although the general rule is, that a Cross 
Bill must be filed before publication, to entitle the party 
to take testimony in support of the facts asserted in 
it, independent of the answer ; yet this rule is a re- 
striction upon the rights of the defendant only, and not 
upon the authority of the Court ; for, where it is neces- 
sary for the pur|X)ses of justice in a particular cause, 
the Court may afterwards direct a Cross Bill to 1x3 
filed.^ Thus, upon hearing a cause, it sometimes ap- 
pears, that the suit already instituted is insufficient to 
bring before the Court all matters necessciry to enable 
it fully to decide upon the rights of all the parties. 



' Ibid. Hence it w a rule, that whore a (.tohs Bill is filed aAer publi- 
cfttioo, and before a decrre in the original cause, the evidence, takni on 
Uie CroM Bill, to any ni:iti«^ni in wsxie in the orif^inal cause, cannot lie read 
at the hearing; of the latter. And on the hearinff of the cross cauBo, the 
lesliinonj of new witnessi's to the matters in issue in the original cau8<>, 
will not, aAcr a decree in the ori^Mual caune, bo allowed to lie read in tho 
croM emuae. But to matters not so in issue it may be read. Wilford v. 
B«aal«y, 3 Atk. TiOl ; Taylor r. Obee, 3 Price, R. 26, H3; Field r. Schief- 
felin, 7 John. Ch. K. 2.vj, 253. 

• Cooper, Eq. PI. 87, 88. ' Mitf. Kq. PI. by Jeremy, 82, 83. 

EQ. PL. 53 



418 EQUITY PLEADINGS. [CH. Vlil. 

This most commonly happens, where persons in oppo- 
site interests are co-defendants, so that the Court can* 
Bot determine their opposite interests upon the Bill 
already filed, and yet the determination of their in- 
terests is necessary to a complete decree upon the 
subject-matter of the suit. In such a case, if, upon 
hearing the cause, the difficulty appears, and a Cross 
Bill has not been exhibited to remove the difficulty, 
the Court will direct a Bill to be filed in order to bring 
all the rights of all the parties fully and properly before 
it for its decision ; and it will reserve the directions 
or declarations, which it may be necessary to give cwr 
make, touching the matter not fiiUy in litigation by 
the former Bill, until this new Bill is brought to a 
hearing.^ 

^ 397. And, if a creditor, who has come in under a 
decree in favor of creditors against a debtor, should re- 
quire relief for the purpose of assisting the- investiga- 
tion of demands, affecting the estate, before the Mas- 
ter, which relief cannot be obtained under the ori^- 
nal Bill, or by a rehearing, he may, even without the 
direction of the Court, file a Cross Bill for the pur- 
pose ; ^ for he might not have had any opportunity, at 
an earlier stage of the proceedings, of presenting his 
case and his objections. 

§ 398. Where the Cross Bill seeks, not only a dis- 
covery, but relief, care should be taken, that the relief 
prayed by the Cross Bill should be equitable relief; for, 
to this extent, it may be considered as not purely a 
Cross Bill, but in the nature of an original Bill, seek- 
ing farther aid from the Court; and then the relief 
ought to be such as, in point of jurisdiction, it is com- 



1 Mitf. Eq. PI. by Jeremy, 82, 83; Id. 203, and cases there cited; 
Field V. Schieffelin, 7 John. Ch. R. 263, 254 ; Ante, ^ 392. 

2 Latouche t;. Dunsany, 1 Sch. & Lefir. 137. 



CH. VUI.] CROSS BILLS. 419 

petent for the Court to give.* It was upon this ground, 
that, where a purchaser of an estate, under articles of 
agreement, filed his Bill for a conveyance, having got 
into possession of a pcirt of the estate, and the vendor 
filed a Cross Bill to recover back the possession from 
the purchaser, the Court, although it dismissed the 
original Bill, refused to give the relief sought u{)on the 
Cross Bill; for it was the proper object of an action of 
ejectment, and entirely within the competence of a 
Court of Law.^ 

^ 399. But, subject to this qualification, a Cross Bill, 
being generally considered as a defence to the original 
Billi or as a proceeding necessary to a complete deter- 
mination of a matter already in litigation, the plaintiff 
is not, at least, as against the defendant in the original 
Bill, obliged to show any ground of Equity to support 
the jurisdiction of the Court.^ It is treated, in short, 
as a mere auxiliary suit, or as a dc{)endency uix>n the 
original suit. 

^ 400. It seems, that in England it is not indis- 
pensable, that a Cross Bill should be filed in the same 
Court, in which the original Bill is filed ; as, for ex- 
ample, if the original Bill had been brought in the 
Court of Exchequer, whilst that Court had Equity juris- 
diction, the Cross Bill might be brought in tlie Court 
of Chancery.* Whether the like doctrine is maintain- 



' Cooper, Eq. PI. h«. 

■ Calverley ». Williams. 1 Vcs. jr. dll. 213 ; Cooper, F^i- PI. «n ^7 , 
Mitf. Eq. PI. by Jeremy, HI, and nuto (2). 

3 Milf. Eq. PI. by Jeremy, hi, h«J, 303; Toopcr, ^i- PI. h« ; Bur- 
geMV. Whetto, 1 VAen, R. IlK); Kempt. MackreU, 3 Aik. HI2; Duble 
r. PoUDM, Hardr. U. lOO; Wyatt, Pr. Keg. K'*, Hfi. 

< Cooper, Fx^. PI. h7; Gle^r^r v. Lcph, 4 Madd. K. l»iJ ; Parker r. 
Leigh, 6 Madd. R. 115. Mr. CiMipcr eo lays duwn the dnctrim! in tbo 
lest, aiid cites for it the case of Newbury ». Wren, 1 A'crn. 220; S. C. 
1 Equity Abridg. 80, pi. 2 ; Id. lai, pi. 3. But this caae was not strictly 



420 EQUITY PLEADINGS. [CH. VUI« 

able in the Courts of America generally may admit of 
question. But, at all events, there cannot be a Cross 
Bill in a State Court to an orignal Bill pending in a 
Circuit Court of the United States. If any Cross Bill 
is wanted in such a cage, it should be brought in the 
same Circuit Court, in which the original Bill is de- 
pending, as it is not an original, but an ancillary suit.^ 
§ 401. In regard to the frame of a Cross Bill, a 
brief statement may suffice. It should state the orig- 
inal Bill, or rather the parties, and prayer, and olgects 
of it, the proceedings thereon, and the rights of the 
party exhibiting the Bill, which are necessary to be 
made the subject of cross litigation, or the ground, on 
which he resists the claim of the plaintiff in the orig- 
inal Bill, if that is the object of the new Bill.^ A 
Cross Bill should not introduce new and distinct mat- 
ters, not embraced in the original suit ; for, as to such 
matters, it is an original Bill, and they cannot properly 
be examined at the hearing of the first suit.* 

a Cross Bill, though it was in the nature of a Cross Bill. The original 
Bill in the Exchequer was a Bill to redeem, and the Bill in Chancery was 
by the defendant in the original suit to foreclose. So that it was strictly 
an original Bill for relief. The objection raised was by a plea of the pen- 
dency of the first suit for the same cause. The plea was overruled. But 
in Parker v. Leigh, 6 Madd. R. 115, the doctrine was affirmed in a Cross 
Bill for a discovery. There seems no small difficulty in understanding, 
how a Cross Bill, strictly so called, for relief, can be brought in a different 
Court from that, where the original Bill is depending ; as the object is to 
enable the Court to hear both causes together ; or, at all events, to enable 
the Court to make a decree upon the whole merits, as disclosed in each 
case. See Field v. Schieffelin, 7 John. Ch. R. 252 ; Gouverneur « Elmen- 
dorf, 4 John. Ch. R. 357 ; Glegg ». Legh, 4 Madd. R. 192 ; Bearaes, PI. 
in Eq. 142. 

1 Mitf. Eq. PI. by Jeremy, 81, 82, 203. See Carnochan v. Christie, II 
Wheat. 446, 467. 

2 Mitf. Eq. PI. by Jeremy, 81 ; Cooper, Eq. PI. 88. 

3 Galavan v. Erwin, Hopk. R. 48; S. C. 8 Cowen, R. 361. A Bill, 
defective in its frame, as a Bill of Review, may sometimes be sustained as 
a Cross Bill. Cooper, Eq. PI. 96 ; Houghton v. West, 5 Bro. Pari. Rep. 
lS3 ; S. C. 2 Bro. Pari. Rep. by Tomlins, 88. 



CH. VIII.] CROSS BILLS. 421 

^ 402. The Cross Bill of Equity Jurisprudence is 
manifestly derived from the Canon Law. By that law, 
when the JReuSj or defendant, was brought in to an- 
swer, he was said to be convened, which the canonists 
called Convention because the plaintiff and defendant 
met to contest ; and since the defendant might like- 
wise have demands against the plaintiff, he had liberty 
to exhibit a Bill against him also, which they called 
Reconventio. And not only may the Cross Bill be thus 
traced back in its origin to the Canon Law ; but the 
ordinary practice in regard to it is derived from the 
same source. Thus, if the Reconventio came in before 
the JJtis Contestation both causes went on pari passuy 
and the same probatory term was assigned to both, 
and the same time given for publication. But the de- 
fendant was to answer on the Convention before the 
plaintiff was to answer on the Reconventio ; because 
the plaintiff first brought the defendant into Court to 
answer his suit, and the defendant's Reconventio was 
only a superstructure upon it. But, if the Reconventio 
did not come in until after the Litis Contestation then 
both causes did not proceed pari passu ; and therefore 
it did not stop the plaintiff in the examination of his 
witnesses. But, if the plaintiff were in contempt for 
not answering on the Reconvention then he would t>c 
stopped from proceeding on his own Conventio. If the 
Reconventio came in after publication, it stopped the 
hearing, till the plaintiff had contested it ; because', 
otherwise, if the defendant had a right, he could not 
have a decree upon the plaintiff's lilx;l.' It has been 

I Gilb. For. Rom. 45-47. Lonl Thiof Baruii Gill»ert has remarked : 
**Oiir law toaching Cross Bills, which is ihc Rtronvmho with us, aprccs 
IB all thioga with this ; for if thu Ooss Uill comes in before issue joined, it 
goes pmi pauu with the original ISilI. Hut if it comes in afU'r issue 
joined, it cannot go pan pauu with it, and stopa nothing, till the plaintiff 



422 EQUITY PLEADINGS. [CH. VIII. 

sometimes suggested, that, upon filing a Cross Bill, the 
original defendant is entitled to stay proceedings^ aod 
excused from putting in his answer to the original 
Bill, until after the defendant in the Cross Bill has put 
in his answer thereto. But this, although apparently 
founded upon some authorities, is not maintainable on 
principle ;^ for it is an attempt by a party to relieve 
himself from the performance of his duty in answering 
the original Bill by merely requiring an an3wer to a 
Cross Bill from his adversary.^ 

^ 403. Secondly, of Bills of Review- A Bill of Re- 
view is in the nature of a writ of error, and its object 
is to procure an examination, and alteration, or rever- 
sal of a decree made upon a former Bill, which decree 
has been signed and enrolled.^ This enrolment of the 
decree is essential to what is called, by vray of pre- 
eminence, a Bill of Review ; for if the decree has not 
been enrolled, then a Bill in the nature of a Bill of 
Review, or a supplemental Bill in the nature of a Bill 
of Review, is (as we shall presently see) the appropri- 
ate remedy.^ The enrolment of decrees in England 



has incarred a contempt. But if it comes in after publication, it stops the 
hearing till answered, and the rather with us, because the defendant has 
a right to the plaintiff's answer upon oath. But if such Bill be filed after 
publication, nothing can be put in issue upon it, that was in issue in the 
original cause." 

^ Ramkissenseat v. Barker, 1 Atk. 19. 

2 Wigley V. Whitaker, 1 Beavan, R. 349, 351. 

3 Mitf. Eq. PI. by Jeremy, 83 ; Gilb. For. Rom. 184, 185; Cooper, 
Eq. PI. 88. 

< Cooper, Eq. PI. 88, 89 ; Mitf. Eq. PI. by Jeremy, 90 ; Dexter v, Ar- 
nold, 5 Mason, R. 303, 310. The following remarks of Chief Baron 
Gilbert, in his Forum Romanum, ch. 10, p. 182, 183, will serve to explain 
the probable origin of the Bill of Review, and the reason why it requires 
an enrollment. " The sentence," says he, ** by the canon and civil was 
twofold, interlocutory and definitive. The interlocutory was any order 
pronounced by the judge in the cause touching the proceedings, before 
they came to a definite sentence ; and the interlocutory order is always 



CH. Vlli.] BILLS OF REVIEW. 423 

is now little known in practice, and therefore Bills of 
Review are rarely brought.^ But as the same principles 
are generally applicable to all the varieties of this spe- 
cies of Bills, we shall state them under the leading 
head of Bills of Review. Indeed, there is the more 
reason for so doing, because in most of the State 
Courts of Equity in America, and certainly in the 
Courts of the United States, all decrees in Equity, as 
well as judgments at law, are matters of record, and 
are deemed to be enrolled, as of the term of the Court, 
at which they are passed, whether actually enrolled or 
not ; so that in those Courts a Bill of Review is the 
ordinary and appropriate proceeding.'^ 

mltenUe befure tho definitive sentence. The definitive sentence must 
always be in writing, and cannot be altered after it is pronounced and 
signed by the judge. But after it is so sifrncd, they might appeal to a su- 
perior jurisdiction. Hut where they were in the last resort, as when it 
caoM up to the prince, there they might appeal from the prince uninform- 
ed to the prince better informed, which was in nature of a review of 
the same sentence. Thus it is in the Court of Chancery ; for all orders 
are interlocutory, till they come to the definitive sentence, which is bijirned 
by the Court; for that sentence signed and enrolled is the definitive sen- 
tence in tho cause, and all preparations before that are but interlocutory. 
For the decree pronounced on the hearing, which is taken down by the 
register, b but an interlocutory sentence, till it comes to be signed by the 
judge of the Court and enrolled. 

1 The defendant may enroll a decree in order to enable him to brine a 
Bill of Review. But this seems unnecessary, as he may (as we shall 
presently see) bring a Bill in the nature of a Bill of Review, or move for 
a lehearing (as the case may require), where the plaintifl*has not enrolled 
the decree. Cooper. Vq. PI. !U. 

* Dexter V. Arnold, 5 Mason, R. 303, 310, 311. The very point cime 
before the Supreme Court of the I'nited Slates, in Whiting v. Bank of 
United Sutes, 13 Peters, R. 0, 13. On that occasion the Court naid; 
" Some euggestions have been maiic as to the nature and character of 
the present Bill, — whether it is to l>c treaU'd as a Bill of Review, or what 
other ia its appropriate denomination. As tho original decree, which it 
aeeka to review, was pru(>erly, according to our course of practice, to Iw 
deeoied recorded and rnroUfd a.H of the term, in which the final decree 
waa paaied, it is certainly a Bill of Review in contradistinction tu a Bill m 
the nature of a Bill of Review ; which latter Bill lies only when there has 



424 EQUITY PLEADINGS. [CH. VIII. 

^ 404. There are but two cases, in which a Bill of 
Review is permitted to be brought, and these two cases 
are settled and declared by the first of the Ordinances 
in Chancery of Lord Chancellor Bacon respecting 
Bills of Review, which Ordinances have never since 
been departed from. It is as follows: "No decree 
shall be reversed, altered, or explained, being once un- 
der the great seal, but upon Bill of Review. And no 
Bill of Review shall be admitted, except it contain 
either 6rror in law, appearing in the body of the de- 
cree, without further examination of matters in fact, 
or some new matter, which hath arisen in time after 
the decree, and not any new proof, which might have 
been used, when the decree was made. Nevertheless, 
upon new proof, that is come to light after the decree 
was made, which could not possibly have been used at 
the time, when the decree passed, a Bill of Re^ew 
may be grounded by the special license of the Court, 
and not otherwise."* So, that from this Ordinance a 
Bill of Review may be brought, first, for error of law ; 
secondly, upon discovery of new matter. 

^ 405. And, first, it may be brought for error of law, 
appearing upon the face of the decree ; as if a decree 



been no enrolment of the decree. Being a Bill brought by the original 
parties and their privies in representation, it is also properly a Bill of Re- 
view, in contradistinction to an original Bill in the nature of a Bill of Re- 
view ; which latter Bill brings forward the interests affected by the de- 
cree, other than those, which are founded in privity of representation. 
The present Bill seeks to revive the suit by introducing the heirs of Whi- 
ting before the Court ; and so far it has the character of a Bill of Revivor. 
It seeks also to state a new fact, viz., the death of Whiting, before the 
sale ; and so far it is supplementary. It is, therefore, a compound Bill of 
Review, of Supplement, and of Revivor ; and it is entirely maintainable 
as such, if it presents facts which ^o to the merits of the original decree 
of foreclosure and sale." 

> Cooper, Eq. PI. 89, and cases there cited ; Dexter v. Arnold, 5 Ma- 
son, R. 310 ; Beam. Ord. in Ch. 1. 



\ 





CH. VIII.] BILLS OF REVIEW. 425 

should be against the statute law, which case happen- 
ed, where a decree directed the legacy belonging to a 
childi who had died an infant intestate without wife or 
children, to be distributed amongst his Hiothcr, broth- 
ers, and sisters equally, whereas by the statute of dis- 
tributions it vested entirely in the father, who had sur- 
vived the child.' So, if an absolute decree should be 
made against a person, who, upon the face of it, ap- 
pears to have been an infant at the timc.^ But, by 
the Ordinance of the Lord Chancellor al)ove men- 
tioned, any error in figures, as in miscasting, shall be 
explained and reconciled by an order, without a Bill of 
Review. By the term, miscasting, is not to be under- 
stood any pretended misrating or misvaluing, but only 
error in the auditing or numbering. It is not necessary 
to obtain leave of the Court, before a Bill of this kind 
for error of law, apparent on the face of the decree, 
can be filed.' 

^ 406. But, by another of the Ordinances al)ove 
mentioned, the decree must be first obeyed and per- 
formed, before a Bill of Review can l)e brought ; as if 
it be for land, the possession must be given up ; if it 
be for money, the money must be paid; if for evi- 
dences, the evidences must be brought in ; and so in 
other cascs.^ But if any act be decreed to be done, 
which extinguishes the parties' right at the Common 
Law, as making of assurance or release, acknowledging 
satisfaction, cancelling of bonds, or evidences, and the 
like, it is declared, that those parts of the decree are 
to be spared, until the Bill of Review In; determined.' 
But such sparing is to be warranted by public order 



> Coopar. Ki\. IM. h9, m) ; Gilb. For. Rom. 184-187 ; Beam. OrU. iu 
Chu. 3,4; CrefTorv. Mulosworth, *2 Yes. 109. 
• Ibid. » Ibid. 

« Cooper, Kq. P). 69. & Ibid. 

zq. PL. 54 



426 EQUITY PLEADINGS. [CH« VIII. 

made in Court. And even the rule, as to obedience 
and performance of the decree, has been dispensed 
with by the Court in some cases ; as where a sum of 
money has been ordered to be paid, and it appeared, 
that the party was unable to pay it.^ 

^ 407. In regard to errors of law, apparent upon 
the face of the decree, the established doctrine is, that 
you cannot look into the evidence in the case, in order 
to show the decree to be erroneous in its statement of 
the facts. That is the proper office of the Court upon 
an appeal. But, taking the facts to be, as they are 
stated to be on the face of the decree, you must show, 
that the Court have erred in point of law. If, there- 
fore, the decree do not contain a statement of the ma- 
terial facts, on which the decree proceeds, it is plain, 
that there can be no relief by a Bill of Review, but 
only by an appeal to some superior tribunal.^ It is on 
this account, that in England decrees are usually 
drawn up with a special statement of, or reference to, 
the material grounds of fact, which support the decree. 
In the Courts of the United States, the decrees are 
usually general, without any such statement of facts*. 
In England, the decree embodies the substance of the 
Bill, pleadings, and answers. In the Courts of the 
United States, the decree usually contains a mere ref- 
erence to the antecedent proceedings without embody- 

1 Cooper, Eq. Pi. 90; Gilb. For. Rom. 185-187; Wyatt, Pr. Reg. 
98 ; Partridge r. Usborne, 5 Russ. R. 195, 244-253; Wiser r. Black- 
ley, 2 John. Ch. R. 488 ; Mitf. Eq. PI. by Jeremy, 88. There are other 
exceptions to the rule, as to the performance of the decree, than those 
stated in the text ; as, for example, the party is not bound to perform any 
more of the decree than his adversary can show, that he is bound to 
perform at the time, when he seeks to bring a Bill of Review, and in re- 
gard to which he is in default. See Partridge v. Usborne, 5 Russ. R. 
195, 244-253, where the subject was most elaborately considered by 
Lord L3mdhur8t. 

» Dexter r. Arnold, 6 Mason, R. 311; Mellish r. WUUams, 1 Vera. 
R. 166; O'Brien v. Conner, 2 Ball & Beatt. R. 146, 164. 



CH.VIII.] BILLS OF REVIEW. 427 

ing them. But for the purpose of examining all er- 
rors of law, the Bill, answers, and other proceedings, 
are, in our practice, as much a part of tlie record be- 
fore the Court, as the decree itself; for it is only by a 
comparison with the former, that the correctness of the 
latter can be ascertained.^ 

^ 408. Where a decree has been affirmed in Parlia- 
ment, it may well be doubted, whether a Bill of Re- 
view for errors apparent upon the face of the decree 
can be brought; for the highest appellate Court has 

1 Dexter v. Arnold, 5 Mason, K. 311, 31:2; Wyatt, Pr. Rc<r. 98; 
Coombiv. Proud, 1 Ch. C;as. 54 ; 8. C. H Frecni. U. 18*2 ; Ilollin^'swortti v. 
McDonald, 2 Ilarr. & John. H. -230 ; Webb v. Pell, 3 Pjiige, R. 3()H. The 
same point arose in the Supreme Court of the Tnitcd States, in Whiting 
V. Bank of United States, 13 Peters, R. 6, 13, 14. On that occasion, the 
Court said ; '^ It has also been suggested, at the bar, that no Bill of Re- 
Tiew lies for errors of law, except where such errors arc apparent on the 
ikee of the decree of the Court. That is true in the sense, in which the 
language is used in the English practice. In England, the decree always 
recites the substance of the Hiil, and answer, and pleadings, and also the 
facts on which the Court foundn its dccreo. ])ut in America the decree 
does not ordinarily recite either the Bill, or answer, or pleadinc!* ; and 
geneially not the facti, on which the decree is foundtMl. But with \i» the 
Bill, answer, and other pleadings, together with the decree, constitute 
what is properly considered as the record. And, therefore, in truth, the 
rule in each eountry is prtKrisely the same, in If gal effect ; although ox- 
pressed in different language ; viz., that the Bill of Review must Ix' found- 
ed on some error apparent upon the Bill, answer, and other pleadings, 
and decree ; and that you arp not at Iil>erty to go into the evidence at large, 
in order to establish an objection to the decree, founded on the supposed 
mistake of the Court in its own drduriions from the evidence." In Per- 
ry V. Phelips, 17 Vcs. 17*:^. Lord Kldmi, Hpfakinj; on this Mibjcct, said ; 
" With regard to the other point, there is a great distinction between ter- 
ror in the decree and error apparent. The lattrr fle*^ription dues not ap- 
ply to a merely erroneous judgment. And this is a point of essi'ntial im- 
portance; as, if I am to hear this cause upon the ground, that the judg- 
ment is wrong, though there is no error apparent, the contciiuence is, that 
in erery instance a Bill of Review may hi; filed ; and the question, whtth- 
er the cause is well decided, will \h* argued in that shsfM; : not, whether 
the decree is right or wrong on the face of it. The cases of error appar- 
ent, found in the b<Miks. are of this sort ; an infant not having a day to 
show cause, Sie», not men^ly an erroneous judgment.'* S. P. ilaig v. 
Homao, 8 Clarke & Fin. H. 3;M). 



430 EQUITY PLEADINGS. [CH. VIIU 

cree. And matter of abatement has been also treated 
as not capable of being shown for error to reverse a 
decree. * 

^412. Secondly. A Bill of Review may be brought 
upon the discovery of new matter ; such, for example, 
as the discovery of a release, or a receipt, which woold 
change the merits of the claim, upon which the decree 
was founded.^ But leave of the Court must be ob- 
tained, before a Bill of Review can be filed on this 
ground ; which leave to file it will not be granted with- 
out an affidavit, that the new matter could not be pro- 
duced or used by the party claiming the benefit of it in 
the original cause. The affidavit must also state the 
nature of the new matter, in order that the Court may 
exercise its judgment upon its relevancy and mate- 
riality.* 

^ 413. Both of these considerations, to which the 
affidavit applies, are indispensable. In the first place, 
the new matter must be relevant and material, and 
such as, if known, might probably have produced a 
different determination.^ In other words, it must gen- 
erally be new matter, to prove vs^hat was before in 
issue, and not to prove a title not before in issue ; not 
to make a new case, but to establish the old one.* In 
the next place, the new matter must have first come 

1 Mitf. Eq. PI. by Jeremy, 85 ; Cooper, Eq. PI. 95; Hartwell ». Town- 
send, 6 Bro. Pari. R. 289 ; S. C. 2 Bro. Pari. R. 107, Tomlins's edit. ; 
Slingsbyr. Hale, 1 Ch. Cas. 122 ; S. C. 1 Eq. Abridg. 169. 

9 Cooper, Eq. PI. 91; Standish v. Radley, 2 Alk. 178; Wjratt, Pr. 
Reg. 98 ; Gilb. For. Rom. 186, 187. 

3 Cooper, Eq. PI. 92 ; Mitf. Eq. PI. by Jeremy, 84 ; Gilb. For. Rom. 
186-188; Wyatt, Pr. Reg. 95. 

4 Mitf. Eq. PI. by Jeremy, 84, 85 ; Wyatt, Pr. Reg. 95 ; Ord r. Noel, 
6 Madd. R. 127; Blake v. Foster, 2 Molloy, R. 257 ; Wiser v. Blackley, 
2 John. Ch. R. 488 ; Livingston v, Hubbs, 3 John. Ch. R. 124. 

5 Dexter v. Arnold, 5 Mason, R. 312 ; Young v. Keighley, 16 Ves. 
348, 354. But see Partridge v. Usbome, 5 Russ. R. 195. 



CH. Vlli.] BILLS OF REVIEW. 431 

to the knowledge of the party, after the time, when it 
could have been used in the cause at the original hear- 
ing. Lord Bacon's Ordinance says, in one part, it 
must be " after the decree." But that seems correct- 
ed by the subsc({uent words, ^'and could not possibly 
have been used at the time when the decree passed," 
which words point to the period of the publication of 
the testimony. And, accordingly, it is now the estab- 
lished exposition of the Ordinance, that the new mat- 
ter shall not have been discovered until after publica- 
tion has passed.^ 

^ 414. In the next place, another qualification of 
the rule, quite as important and instructive, is, that the 
matter must not only be new, but it must be such, as 
the party, by the use of reasonable diligence, could 
not have known ; for, if there be any laches or neg- 
ligence in this res|)ect, that destroys the title to the 
relief.* 

^ 416. It has been remarked by Lord Redesdale, 
that ^^ It has been questioned, whether the discovery of 



^ Dexter v. AnioM, 5 M.iaon, H. 312; Mitf. K^. IM. by Jeremy, H4, 
fl5; Ord v, Noel, Madd. K. 127; Wiser r. Blackley, 2 John. Ch. R. 
4fl8; LiTinfTBtoii v. lluhhs, 3 John. C'h. H. 124. liord Hardwieke ifi re- 
ported to have said, that the words of Lord Bacon are dark. Hut that 
the construction has been, that the new matter must have come to the 
lcnowled|;e of the party aArr publication passt'd. Patterson v. Slaughter, 
AmM. R. 293 ; Norris v. I^e Nfve, 3 Atk. 25, 31. 

* Dexter v. Arnold, '• Ma^on, R. 312, 320, 321 ; Bintrham v. Dawson, 
Jaeob, R. 243 ; Li\in^rston v. liuMm, 3 John. di. R. 121 ; Prndhton v. 
Fay. 3 Paige, H. 201; Ord v. Noid, Mad.l. U. 127. That dortrine 
was exponnded and adherod to by Iiord Kldon in Voun^ v. K«>i;;hlcy, 
IG Vea. 3-18, and was acted up(»n by lionl Manners in Barrin^ton o. 
O'Brien, S B. dt B^att. 1 10. and Blake p. FoxU-r, 2 B. &. Btait. i:>7, Uil. 
It waa fully rccofrnized by Mr. ( 'hanrrllor Kent, and riKreived the sanction 
of hia high authority in \Vis4*r r. Blarkley, 2 Johns. C'h. H. tHN, mid 
Barrow V. Rhinelandcr, 3 Johns. Ch. R. 120. And in the very rrcnit 
eaae of Bingham r. Dawson, 1 Jac. dt Walk. 213, Ijord Kldtui iiifuwd 
into it additional vigor. Sec also Hudson p. Ball, 11 Sim. R. I.Vi, 103; 
S. C. 1 Phill. Ch. R. Ibs2 ; Ante, f 338. 



432 EQUITY PLEADINGS. [cH. VIII. 

new matter, not in issue in the cause, in which a cJe** 
cree has been made, could be the ground of a Bill dT 
Review ; and whether the new matter, on which Bills 
of Review have been founded, has not always been 
new matter to be used as evidence to prove matter in 
issue, in some manner, in the original Bill. A case, 
indeed, can rarely happen, in which new matter dis- 
covered would not be, in some degree, evidence of 
matter in issue in the original cause, if the pleadings 
were properly framed. Thus, if after a decree, found- 
ed on a revocable deed, a deed of revocation and new 
limitations were discovered ; as it would be a necessa- 
ry allegation of title under the revocable deed, that it 
had not been revoked, the question of revocation 
would have been in issue in the original cause, if the 
pleadings had been properly framed. So, if, after a 
decree, founded on a supposed tide of a person, claim- 
ing as heir, a settlement or will were discovered, which 
destroyed or qualified that tide, it would be a necessary 
allegation of the title of the person claiming as heir, 
that the ancestor died seised in fee simple, and intes- 
tate. But if a case were to arise, in which the new 
matter discovered could not be evidence of any matter 
in issue in the original cause ; and yet clearly demon- 
strated error in the decree ; it should seem, that it 
might be used, as ground for a Bill of Review, if relief 
could not otherwise be obtained. It is scarcely possi- 
ble, however, that such a case should arise, which 
might not be deemed in some degree a case of fraud, 
and the decree impeachable on that ground. In the 
case, where the doubt before mentioned appears to 
have been stated, the new matter, discovered and al- 
leged as ground for a Bill of Review, was a purchase 
for valuable consideration, without notice of the plain- 
tiff's tide. This could only be used as a defence. 



CH. VIII.] BILLS OF REVIEW. 433 

And it seems to have been thought, that, although it 
might have been proper, under the circumstances, if 
the new matter had been discovered before the decree, 
to have allowed the defendant to amend his answer, 
and put it in issue ; yet it could not be made the sub- 
ject of a Bill of Review ; because it created no title 
paramount to the title of the plaintiff, but merely a 
ground to induce a Court of Equity not to interfere,* 
And where a settlement had been made on a marriage 
in pursuance of articles, and the settlement following 
the words of the articles had made the husband tenant 
for life, with remainder to the heirs male of his body ; 
and the husband, claiming as tenant in tail under the 
settlement, had levied a fine and devised to trustees, 
principally for the benefit of his son ; and the trustees 
had obtained a decree to carry the trusts of the will 
into execution against the son ; the son afterwards, on 
discovery of the articles, brought a Bill to have the 
setdement rectified according to the articles, and a de- 
cree was made accordingly.^ In this case, the new 
matter does not appear to have been evidence of mat- 
ter in issue in the first cause, but created a title ad- 
verse to that, on which the first decree was made."^ 



> ToQDg V. Keighly, 10 Vcb. 348, 354. 

* Roberts v. Kindly, 1 Vch. 238. 

• Miif. Eq. PI. by Jt-rrmy, 85-87, and oases tbere cited; Gilb. For. 
Rom. 188. Tbifl subject, vihicb seems involved in some difficulty, was 
a good deal investigated in tbe case of Dexter v. Arnold, 5 Mason, R. 
313, where the (*ourt said ; ** I'pon another point there is not, perhaps, 
a aniformity of opinion in the authorities. 1 allude to the diHtinrtion 
taken in an anonymouH case in 2 Freem. Rep. 31, where the Chancellor 
■aid, that ' where a matter of fact was particularly in issue before the 
former hearing, thoutrh you have nnr proof o( that matter, upon that you 
■hall Barer have a Bill of Review. Hut where a nnr fart is aliei^LMl. that 
waa not at the former heann|7« there it may be a ground for a Bill of Re- 
view.' Now, asfcuminf; that under certain circumstances, new matter, not 
in eridence, that is, not in issue in the original cause, but clearly demon- 
atratiflf error in the decree, may support a Bill of Review, if it is tho 

Eq. PL. 55 



434 EQUITY PLEADINGS. [CH. VIII. 

^ 416. The doctrine here asserted by Lord Redes- 
dale seems now to be fully confirmed ; and it has been 



only mode of obtaining relief; still it roust be admitted, that the general 
rule is, that the new matter must be such as is relevant to the original 
case in issue. Lord Hardwicke, in Norris v. Le Neve, 3 Atk. 33, 35, it 
reported to have admitted, that a Bill of Review might be founded upon 
new matter, not at all in issue in the former cause, which seems contrary 
to his opinion in Patterson v. Slaughter, Ambler, 293, or upon matter, 
which was in issue, but discovered since the hearing. But the very point 
in 2 Freeman, 31, (if I rightly understand it,) is, that a newly discovered 
fact is ground for a Bill ; but not newly discovered evidence in proof of 
any fact already in issue. This seems to me at variance with Lord Bar 
con's Ordinance ; for it is there said, that there may be a review upon 
* new matter, which hath arisen in time after the decree,' and also * upon 
new proof, that has come to light after the decree made, and could not 
possibly have been used at the time, when the decree passed.' It is also 
contrary to what Lord Hardwicke held in the cases cited from 3 Atk. 33, 
and Ambler, 293. Lord Eldon, in Young v. Keighly, 16 Ves. 348, 350, 
said ; * The ground [of a Bill of Review] is error, apparent on the &ee 
of the decree, or new evidence of a fact materially pressing upon the de- 
cree, and discovered at least after publication in the cause. If the fact 
had been known before publication, though some contradiction appears in 
the cases, there is no authority, that neio evidence would not be sufficient 
ground.' That was also the opinion of Lord Manners, in Blake v. Foster, 

2 B. & Beatt. 457. Mr. Chancellor Kent, in Livingston v. Hubbs, 

3 Johns. Ch. R. 124, adopted the like conclusion ; and he seemed to think, 
that such new evidence must not be a mere accumulation of witnesses to 
the same fact ; but some stringent written evidence or newly discovered 
papers. Gilbert, in his Forum Romanum, ch. 10, p. 186, leans to the 
same limitation ; for he says, that in Bills of Review, * they can examine 
to nothing, that was in the original cause, unless it be matter happening 
subsequent, which was not before in issue, or upon matter of record or 
writing not known before ; for if the Court should give them leave to 
enter into jyroofs upon the same points, that were in issue, that would be 
under the same mischief as the examination of witnesses after publication, 
and an inlet into manifest perjury.' There is much good sense in such a 
distinction, operating upon the discretion of the Court in refusing a Bill 
of Review, and I should be glad to know, that it has always been ad- 
hered to. It is certain, that cumulative written evidence has been admit- 
ted ; and even written evidence to contradict the testimony of a witness. 
That was the case of Attorney-General v. Turner, Ambler, 587. Willan 
r. Willan, 16 Ves. 72, 88, supposes, that new testimony of witnesses 
may be admissible. If it be admissible, (upon which I am not called to 
decide,) it ought to be received with extreme caution, and only when it is 
of such a nature as ought to be decisive proof. There is so much of just 



CH VIII.] BILLS OF REVIEW. 435 

established, that matter discovered after a decree has 
been made, although not capable of being used as evi- 
dence of any thing, which was previously in issue in 
the cause, but constituting an entirely new issue, may 
yet be the subject of a Bill of Review, or of a supple- 
mental Bill in the nature of a Bill of lleview.^ 

^ 417. In the next place, there is another important 
qualification, which is indeed deducible from the very 
language of Lord Bacon^s Ordinance ; and that is, 
that the granting of such a Bill of Review for new 
discovered evidence is not a matter of right ; but it 
rests in the sound discretion of the Court. It may, 
therefore, be refused, although the facts, if admitted, 
would change the decree, where the Court, looking to 
all the circumstances, shall deem it productive of mis- 
chief to innocent parties, or for any other cause un- 
advisable.^ 



leaioning in tho opinion of the (*oiirt of Appeals of Kentucky on thia 
subject, that I should hesitate lon^ hefoie I should act against it.'* See 
also Respun v. McClanahan, IIardin*s Kent. R. 342; Oilb. For. Rom. 
186; and tho doctrine of Lord Kldon, in Young e. Keighly, 10 Ves. 
3M ; LiTingston v. Huhb."*, 3 John. Ch. R. V2l. The Court hiia refused 
it« leare to file a Bill of Review, where it would have been the moans of 
introduein^r an entirely new ca.He, of the matter of which the plaintiff was 
■aflieiently well apprized of to have been able, with the exertion of rea- 
sonable diligence, to have hroujL^ht the same at first completirly hofon! the 
Court. Younp v. Keiphly. in Vrs. 318. And see Ord v. Noel, (» Madd. 
197, and Bin^^ham v. Dawson, 1 Jac. R. 343, which, although cases re- 
lating to sappleiiiental RilIs in the nnture of Rills of Kcview, illustrate 
this principle. Sot* also Ludlow r. I^>rd .Macartney, *J Rro. V. (\ G7, 
Toml. edit.; Le NVve v. Norris, 2 Rro. P. ('. 73, Toml. edit. ; M'Neill 
9. Cahill, S Bligh, P. C. 2i2H ; Roberts v. KinfTNlcy. 1 Vcs. -JSH. If this 
last case is accurately re{Hirted, the Dill seemM to liave l>een filed without 
the previous leave of the Toiirt ; and on th<' hearinfr, an inquiry was di- 
rected as to the fact n( the discovery of the articles. See Vouni; r. 
Keighly, 16 Ves. 3-lH. 

> Partridjfc ». Csborne, 5 Russ. R. 195. But sec Young V. Krij;hly, 
16 Ves. 354. 

• Bennet r. l-ee, '2 Atk. !>2A , WiNon v. Wall, 2 (.'ox, R. 3; Young 
V. Keighly, 16 Ves. 348; Perry r. Phelips, 17 Ves. 176-178; Ord r. 



436 EQUITY PLEADINGS. [CH. VIII. 

§ 418. A Bill of Review upon new discovered mat- 
ter has been permitted, even after an affirmance of the 
decree in Parliament. As where, after a decree dismis- 
sing a Bill, and which dismissal was affirmed in the 
House of Lords, a Bill of Review was brought for dis- 
covery of a deed, said to be burnt pending the appeal, 
which made out the plaintiff's title ; and the Bill was 
in order, that after such discovery the plaintiff might 
apply to the Lords for relief; the defendant demurred 
to the Bill ; but the demurrer was overruled, and the 
defendant ordered to answer. And a Bill of Review 
may be brought after one Bill of Review already filed ; 
as if upon a Bill of Review a decree has been reversed, 
another Bill of Review may be brought upon the de- 
cree of reversal.^ But, if a demurrer has been allowed 
to a Bill of Review, a new Bill of Review upon the 
same ground will not be allowed.^ 

§ 419. We have already seen, that a Bill of Review 
for error apparent on the face of the decree, must be 
brought within the same period, which limits writs of 
error at law.* The question may arise, whether the 
like limitation applies to Bills of Review upon new 
discovered facts and evidence. There can be no doubt, 
that it will be a good bar, that the Bill of Review 
is not brought within the period limited for writs of 
error, after the discovery of the new facts or evidence. 
But the point, intended to be stated, is, whether any 

Noel, 6 Madd. R. 127 ; Partridge v. Usborne, 5 Rass. R. 245 ; Dexter v. 
Arnold, 5 Mason, R. 315 ; Thomas v. Harvie's Heirs, 10 Wheat. R. 146; 
Wood V. Mann, 2 Sumner, R. 316 ; Ante, § 412. See Hodson v. Ball, 
11 Sim. R. 456, 463; S. C. 1 Phill. Ch. R. 177, 182; Ante, § 338; Post, 
§421. 

1 Cooper, Eq. PI. 92, and cases there cited; Mitf. Eq. PI. by Jere- 
my, 88. But see Stafford v. Bryan, 2 Paige, R. 45. 

9 Mitf. Eq. PI. by Jeremy, 88 ; Cooper, Eq. PI. 93 ; Denny v. Filmore, 
1 Vern. R. 135. 

3 Ante, § 410. 



CH. VIII.] BILLS OF REVIEW. 437 

Bill of Review will lie after the lapse of that period 
from the time of making the decree, although the Bill 
of Review is brought within the prescribed period after 
the discovery of the new facts or evidence. There 
does not seem to be any decision settling the point ; 
and, as the allowance of a Bill of Review for new dis- 
covered evidence is discretionary with the Court, it is 
scarcely probable, that it will arise in judgment, as the 
lapse of time will always have great weight with the 
Court in refusing the application, in connection with 
the other circumstances.' 

^ 420. Let us now consider the frame of a Bill of 
Review. In a Bill of this natun.*, it is necessary to 
state the former Bill, and the proceedings thereon ; the 
decree, and the i)oint, in which the party exhibiting 
the Bill of Review conceives himself aggrieved by it; 
and the ground of law, or matter discovered, u|)on 
which be seeks to impeach it.^ And if the decree is 
impeached on the latter ground, it seems necessary to 
state in the Bill the leave obtained to file it, and the 
fact of the discovery.* It has l)een doubted, whether, 
after leave given to file the Bill, the fact of discovery is 
traversable. But this doubt may be questioned, if the 
defendant to the Bill of Review* can offer evidence, that 
the matter alleged in the Bill of Review was within the 
knowledge of the party, who might have taken the 
benefit of it in the original cause."* The Bill may simply 
pray, that the decree may Ik; reviewed, and reversed in 
the point complained of, if it has not been carried into 
execution.' If it has l)een carried into execution, the 



I The point wm before the Siiprefne Tourt in Thomas v. Ilarviir's 
Hein, 10 Whrat. K. 14fi, 151 ; but the Tuurt leH it undecided. Sec also 
Mitf. Eq. PI. bv Jtrrmy, hh; f\K.iK.T, Va\. PI. 1«, »3. 

« Mitf. Va\. pi. bv Ji'rtmv, hh, k»; Cooper, Fa[. PI. 05. 

» Ibid. < Ibiil. * Ibid. 



438 EQUITY PLEADINGS. [CH« VIIK 

Bill may also pray the further decree of the Court to 
put the party complaining of the former decree into 
the situation, in which he would have been, if thai 
decree had not been executed/ If the Bill is brought 
to review the reversal of a former decree, it may pray, 
that the original decree may stand.^ The Bill may 
also, if the original suit has become abated, be at the 
same time a Bill of Revivor.^ A supplemental Bill 
may likewise be added, if any event has happened, 
which requires it ; and, particularly, if any person, not 
a party to the original suit, becomes interested in the 
subject, he must be made a party to the Bill of Review 

1 Ibid. 

* Mitf. Eq. PI. by Jeremy, 88-90, and cases there cited; Cooper, Eq. 
PI. 95; Dexter v. Arnold, 5 Mason, R. 308, 309. In Dexter v. Arnold, 
5 Mason, R. 308, 309, the Court, upon the hearing of the petition for 
leave to file a Bill of Review, allowed the adverse party to file counter 
aflidavits. On that occasion, the Court said ; ** This course, though not 
very common, is, as I conceive, perfectly within the range of the authmity 
of the Court ; and may be indispensable for a just exercise of its func- 
tions, in granting or withholding the review. If, indeed, it were doubt- 
ful, in case the Bill of Review should be allowed, whether the defendants 
could by plea or answer traverse the allegation in such Bill, that the mat- 
ter of fact is new, I should not hesitate to inquire, in the most ample 
manner, into the truth of such allegation, before the Bill was granted, in 
order to prevent gross injustice. But as every such Bill of Review mnst 
contain an allegation, that the matter of fact is new, it seems to me clear, 
upon principle, that, as it is vital to the relief, it is traversable by plea or 
answer, and must be proved, if not admitted at the hearing. In Hanbury 
V. Stevens (1784), cited by Lord Redesdale (Redesd Eq. PL 80, 3d ed. 
70; Id. 4th ed. by Jeremy, 89), the Court is reported to have held that 
doctrine. The case of Lewellen v. Mackworth, 2 Atk. R. 40, and Barnard. 
Ch. R. 445, though very imperfectly, and, as I should think, inaccurately 
reported, seems to me to support the same conclusion. It has been relied 
on by the best text-writers for that purpose. Lord Redesdale, in his 
original work on Equity Pleadings (Redesd. Eq. PI. 80, 2d edition), stated 
the point as one, which may be doubted. But upon principle I cannot see, 
how that can well be. And in the last edition (the third), revised by his 
Lordship, I find, that he has questioned the propriety of such a doubt." 
See also Hanbury r. Stevens, cited in note {k) to Mitf. Eq. PI. by Jere- 
my, 89. 

3 Ibid. 



CH. VIII.] BILLS OF REVIEW. 439 

by way of supplement.^ It may be added, that all the 
parties to the original Bill ought to be made parties to 
the Bill of Review ; for it is a principle of natural jus* 
tice, that no one ought to be aflccted by any decree 
without his first being heard.^ 

^ 421. Thirdly: Bills in the nature of Bills of Re- 
view. It has been already stated, that the only dis- 
tinction between Bills of Review, and Bills in the 
nature of Bills of Review, consists in the enrolment 
or non-enrolment of the decree. In the former case, 
a Bill of Review is [)roper ; in the latter case, a Bill 
in the nature of a Bill of Review.* As, however, a 



> Ibid.; HiNlson r. Ball, 11 Sim. R. 45G, 4C3 ; S. C. I Phill. Ch. K. 
163 ; Ante, § 335 ; Post, ^ 4*20. 

• Cooper, Eq. PI. 05. 

5 Ante, ^ 403 ; Cooper, Eq. PI. 88 ; Mitf. Eq. PI. by Jeremy, 90; Stan- 
duh 9. Kadley, 2 Atk. 17H ; Wyatt, Pr. Wop. 96 ; Wiser r.Blarhley, 2 
John. Ch. R. 48H; Smith v. Clay, 3 Hro. Ch. R. by Belt, 03!), note; 
S. C. Ambler, R. 015. This is nut merely a formal distinction ; hut in 
many cases it is connpcted with the ri^'hts of the party. Thus, although 
m Bill of Review Vivs for rrnint of law ap])arent on the face of a drcrre; 
yet it his never beon decidi'd, that a Bill in the nature of a Bill nf Re- 
view lies in such a ccuw* ; for the pro|>er remedy may lie had by a rirhear- 
ing. In Perry V. Phclips, 17 Vcs. 178, I^rd Eldon uned the following 
language: ** I further doubt, uiKin this case, whether a Bill in nature of 
m Bill of Review can In; filed upon matter of law. Where the decree 
has been enrolled, there are two grounds of review : error apparent; and 
new facts, or facts newly diseovrred. In the first case, the plaintiff has 
a right to file a Bill uf Review ; in the two latter cases, he mu»t have 
the leave of the r<Mirt. Where the oh)eetion is u)K>n matter of law ap- 
parent, or a iniMake in hiw, to Ih.' rcilireted from all the pU':idin(5s and 
evidence, the derrer nut Inmh}; Hii;ned and enrolled, it is the subject of a 
rehearing; and there is no occasion for a Bill in nature of a Bill of Re- 
view, unless a supplemental Bill is also necessary to iiitr<Hiuco ww farts; 
in which case the cause villi come on to \w heard njMin the matter of that 
sapplemental Bill, toirither Mith a rehearing? of the oripinal cause. And 
the Court will vary the decrei: up<in the rehearing; takiiig into consider- 
ation the new, or lately discovered, facts. But I apprehend, there is no 
instance of a Bill in nature ot a Bill of Review upon error apparent.'* 
Hodson r. Ball. 1 Phili. Th. R. 177. 1*91. hi this last case, I^rd Lynd- 
hunt said ; *' The original Bill was, as far as related to three of the de- 



440 EQUITY PLEADINGS. [CH. VIII. 

decree, not signed and enrolled, may be altered or 
reversed upon a rehearing, without the assistance of 

fendants, a Bill calling on them, as executors and trustees, to accoant; 
and an account was decreed against them in the common form. The 
supplemental Bill stated, that after the decree had been carried into the 
Master ^s office, it was discovered, for the first time, that the trustees had 
greatly misconducted themselves in the management of the afiaiis of the 
trust, and it accordingly prayed, that they might account for what, except 
for their wilful neglect and default, might have come to their hands. So 
that the decree prayed for by the supplemental Bill, was essentially dif- 
ferent from the decree pronounced by the Vice-Chancellor upon the orig- 
inal Bill. On this ground it was insisted that the Bill ought to be taken 
off the file, it having been filed without the permission of the Court. In 
answer to that it was said, that the Bill was not a supplemental Bfll 
in the nature of a Bill of Review, but a supplemental Bill in aid of 
a decree; and a passage from Mitford^s Treatise on Pleading was re- 
ferred to, in which it is stated, that a supplemental Bill may be filed in 
aid of a decree, in order that it may be earned fully into execution. 
Now there is no doubt of the correctness of that position, but the ques- 
tion is, what is the province of a supplemental Bill in aid of a de- 
cree ? I apprehend that a supplemental Bill in aid of a decree caxmot 
vary the principle of the decree. Its province is, to carry out the prin- 
ciple of the decree ; to give full and complete effect to the decree, as it 
exists. The instance that is generally given of a supplemental Bill in 
aid of a decree, is of this description ; where there has been a decree 
to account, but directions have not been sufficiently given as to the man- 
ner of accounting, and a further decree is therefore required for the pur- 
pose of supplying this defect, that is, of carrying into full effect the 
original decree. In the case that was cited, of Dormer v. Fortescue, 
3 Atk. 124, Lord Harkwicke states, what seems to be the foundation 
of the passage in Mitford, ' that supplemental Bills are often brought 
even in aid of a decree of this Court ' ; and he illustrates that by the case 
to which I have referred, for he says * as in a decree to account for want 
of full directions before,' and the very case of Dormer r. Fortescue 
seems to be a case of that description, because, there, the original decree 
had established the title, but there was a doubt, whether the Court would 
be justified in founding on that decree and on the existing record, an or- 
der that the party should account for the rents and profits from the time 
when the title of the plaintiff* had accrued; and, for the purpose of sup- 
plying that supposed omission, the supplemental Bill was filed. Lord 
Hardwicke was of opinion, that the proceedings were sufficient, but sup- 
posing, he said, that they were not, the supplemental Bill had rendered 
them sufficient. Now that was strictly a supplemental Bill for the pur- 
pose of carrying out and accomplishing the original decree, and the ob- 
ject of it, not for the purpose of varying the principle of the decree : and 



CH. Till.] BILLS OF REVIEW. 441 

a Bill in the nature of a Bill of Review, if there is 
sufficient matter to alter or reverse it, appearing upon 
the former proceedings, the new investigation of the 
decree must be, or at least usually is, brought on by 
a petition for a rehearing, when there is no defect to 
be supplied.^ 



therefore, I apprehend, the distinction is that which I have stated, — that 
a suppleinental Bill in aid of a decree is not a supplemental Bill that 
•eeki to Yary the principle of the decree, but one which takes the princi- 
ple of the decree as the basis, and seeks merely to supply any omission 
which there may be in the decree, or in the proceedings, so as to enable 
the Court to give full effect to its decision. Now the decree prayed for 
in thia case ia quite contrary to the principle of the original decree. The 
original decree was merely for a common account. The supplemental 
BUI pnyn for an account of quite a different nature and character, found- 
ed on the wrongful conduct of the parties; for it calls upon them to ac- 
eount, not for what they have received or what has come to their hands, 
or to the hands of others for their use, but for what they might have re- 
eeifed, had it not been for their wilful default. This therefore cannot be 
conaidered as a supplemental Bill in aid of a decree, because it proceeds 
upon a principle quite different from that of the original decree. It 
does not seek to carry out that decree ; it is not in furtherance of that 
decree, but for the accomplishment of quite a different object ; and I think 
the plaintiff himself has pronounce<l his own opinion of the nature of 
the Bill upon the very face of the Bill itself, for he has introduced an 
SYennent, that the supplemental matter has been discovered since the 
original decree was pronounced, — an averment which is necessary for 
the purpose of supporting a supplemental Bill in the nature of a Bill of 
Review, but which is not required in a supplemental Bill in aid of a dc- 
eiee.'* Ante, § 338, 351, a; Post, § A22. 

1 Mitf. Eq. PI. by Jeremy, IK), 91 ; Cooper, Eq. PI. 89, 93; Gilb. For. 
Rom. 183; Wyatt, Pr. Keg. 90,99; Standish v. Radley, 2 Atk. 178; 
Moore V. Moore, 2 Ves. 5»S; Perry v. Phelips, 17 Vf«. 173, 176, 178; 
Pendleton 9. Fay, 3 Paige, K. 201 ; Wiser v. Blachley, 2 John. Ch. R. 
488. The following note from Mitf. T*^}. PI. by Jeremy, 90, may bo here 
usefully cited ; **Thc rehearing, which is thus far alluded to, not being 
sought in respect to any new matter, is obtained up<m certificate of coun- 
sel (18 Ves. 325), by a petition merely, which states the case as brought 
before the Court, when the decree was made (\Vo(»d v. Griffiths, 1 
MeriY. 35) ; and the grounds, on which the rehearing is prayed (1 Sch. 
& Lefr. 308). And here it may not be improper to notice, that the Court 
will not, without consent (3 Swanst. 231), vary a decree aAer it has been 
and entered, except as u> mere clerical errors (Lane v. Ilobbs, 12 

KQ. PL. 56 



442 EQUITY PLEADINGS. [CH. VIII. 

^ 422. The true office of this sort of Bill, as now 
used, is to bring before the Court new matter, dis- 
covered since publication in the original cause, when 
the decree has not been signed and enrolled.^ In 
such a case the new matter is brought forward by a 
supplemental Bill, or a new Bill in the nature of a 
Bill of Review ; and it ought to be accompanied by a 
petition to rehear the original cause at the same time, 
that it is heard upon the supplemental Bill.* Such 
a supplemental Bill cannot be filed without the leave 
of the Court, nor without an affidavit similar to that 
required in the like case of a Bill of Review.' If 
necessary, a Bill of Review may also be incorporated 
into such a supplemental Bill/ And where a different 

Ves. 458 ; Weston v, Haggeretou, Coop. R. 134 ; Hawker ». Dnncombe, 
2 Madd. R. 391 ; 3 Swanst. 234 ; Tomlins v, Palk, 1 Ruas. R. 475) ; or, 
matters of course (Pickard v. Mattheson, 7 Yes. 293; Newhouse v. 
Mitford, 12 Ves. 456) ; unless upon a petition of rehearing or npoo a 
Bill of Review, or Bill in the nature of a Bill of Review (4 Madd. 39 ; 
Grey V. Dickenson, 4 Madd. 464; Brackenbury v. Brackenbury, 2 Jac. 
& Walk. 391 ; Willis v. Parkinson, 3 Swanst. 233 ; Brookfield r. Brad- 
ley, 2 Sim. & Stu. 64) ; according as the decree has, or has not, been 
signed and enrolled ; and as it is sought to have the case reheard as orig- 
inally brought before the Court, or accompanied with new matter." In 
some cases a rehearing will be allowed by the Court, notwithstanding the 
application for the rehearing is made after the ordinary time allowed for 
the purpose ; as, for example, where a decree not final in its nature, or 
which has been only partially acted on, is radically erroneous, so that 
upon an appeal it would be reversed. Ackland r. Braddick, 3 Yoange 
& Coll. 237. 

1 Moore v. Moore, 2 Ves. 596, 598 ; S. C. 1 Dick. 66; Beam. Ord. in 
Chan. 366-368 and note ; Wyatt, Pr. Reg. 96, 98, 99 ; Perry v, Phelips, 
17 Ves. 176-178; Pendleton r. Fay, 3 Paige, R. 204 ; Mitf Eq. PI. by 
Jeremy, 91, 92 ; Post, f 425; Hodson v. Ball, 1 Phill. Ch. R. 177, 181 ; 
Ante, § 338, 351, ^. 

2 Ibid.; Hodson v. Ball, 11 Simons, R. 456; S. C. 1 PhUl. Ch. R. 
182; Ante, § 338, 351, a, 420, note. 

3 Cooper, Eq. PI. 93, 94 ; Pendleton ». Fay, 3 Paige, R. 204 ; Wyatt, 
Pr. Reg. 99; Mitf. Eq. PI by Jeremy, 91 ; Hodson ». Ball, 1 PhUl. Ch. 
R. 177, 181. 

4 Wyatt, Pr. Reg. 99 ; Perry v. Phelips, 17 Ves. 176, 177 ; Pendle- 
ton r. Fay, 3 Paige, R. 208. 



CH. VIII.] BILLS OF REVIEW. 443 

kind of relief is sought, or a different principle from 
that, on which the original decree is given, there it 
must be sought by a supplemental Bill, in the nature 
of a Bill of Review.* 

^ 423. It seems to be a general rule, that a supple- 
mental Bill for new discovered matter, should be filed 
as soon after the new matter is discovered, as it rea- 
sonably may be.* If, therefore, the party proceeds to 
a decree after the discovery of the facts, upon which 
the new claim is founded, he will not be permitted 
afterwards to file a supplemental Bill in the nature of a 
Bill of Review, founded on those facts ; for it was his 
own laches not to have brought them forward at an 
earlier stage of the cause.* 

^ 424. If a decree has been made against a person, 
who had no interest at all in- the matter in dispute, or 
who had not such an interest, as was sufficient to ren- 
der the decree against him binding upon some person, 
claiming the same or a similar interest, relief may be 
obtained against the error in the decree by a supple- 
mental Bill in the nature of a Bill of Review, as has 
been already mentioned in treating of supplemental 
Bills.^ Thus, where a Bill was filed by a vicar for 
tithe of lead against a parish, and four p^irishioners 
were named defendants, and a decree was made 
against them ; and one, who claimed under none of 
them, contested the decree ; the Court allowed him 
to have a Bill of Review.^ If a decree is made against 



> Hodsonv. Ball. II Sim. R. 45A ; S. C. 1 Phill. Th. R. 177, 18i2; 
Ante, { 338, 351, a, 420, note. 

* Ante, j 337, 338, a, 370, a. 

' Pendleton v. Fay, 3 Pai^rr, R. 201 ; nin^ham v. Dawaon, Jac. R. 
943; Ord 9. Novl, 6 Madd. R. 127; Diaa v. Merle, 4 Paige, R. 259; 
Ante, $ 337, 370, a. 

« Ante, « 338. 

* Brown v. VanDudcn, 1 Cb. Cu. 379. 



444 EQUITY PLEADINGS. [CH« VIII. 

a tenant for life only, a remainder-man in tail, or in 
fee, cannot defeat the proceedings against the tenant 
for life, but by a Bill, showing the error in the decree, 
the incompetency of the tenant for life to sustain the 
suit, and the accruer of his own interest ; and there- 
upon praying, that the proceedings in the original 
cause may be reviewed, and that, for that purpose, 
the other party may appear to and answer this new 
Bill, and that the rights of the parties may be proper- 
ly ascertained.^ A Bill of this nature, as it does not 
seek to alter a decree made against the plaintiff him- 
self, or against any person, under whom he claims, 
may be filed without leave of the Court being first ob- 
tained for that purpose.* 

^ 425. A supplemental Bill in the nature of a Bill 
of Review nearly resembles in its frame a Bill of Re- 
view, except that, instead of praying, that the former 
decree may be reviewed or reversed, it prays, that the 
cause may be heard with respect to the new matter 
made the subject of the supplemental Bill, at the same 
time, that it is reheard upon the original Bill ; and, 
that the plaintiff may have such relief, as the nature of 
the case, made by the supplemental Bill, requires.^ It 
should, also, state the circumstances positively, which 
entitle the party to file it, viz. that the decree has not 
been enrolled, and not merely state them in the alter- 
native, praying one sort of relief, as upon a Bill of 
Review, if the decree has been enrolled, and if not 
enrolled, then to have the benefit of it, as upon a sup- 
plemental Bill in the nature of a Bill of Review.* 



1 Cooper, Eq. PI. 94, and cases there cited ; Mitf. Eq. PI. by Jeremy, 
92 ; Brown v. Vermuden, I Ch. Cas. 272 ; Osborne v. Usher, 6 Bro. 
Pari. R. by Tomlins, 20; S. C. 2 Bro. Pari. R. 314. 

9 Ibid. 

3 Mitf. Eq. PI. by Jeremy, 91, 92 ; Cooper, Eq. PI. 96. 

< The remarks of Lord Eldon in Perry ». Phelips, 17 Ves. 176-178, 



CH. VIII.] BILLS IMPEACHING DECREES. 446 

§ 426. Fourthly; Bills impeaching decrees for fraud. 
A Bill of this sort is an original Bill in the nature 
of a Bill of Review.* There is no doubt of the juris- 

OD thiB whole subject, are so very important, that, though long, I cannot 
omit to bring them before the reader, as they explain the text, and also 
illastrtte the principles of pleading in this case. ** There is no objection,*' 
aaid he, '* to this Bill, as being on the face of it a Bill of Review and a 
Bill of Revivor and Supplement ; as, in some cases, the Bill must of ne- 
cessity be both a Bill of Review and a Bill of Revivor ; and in some, a Bill 
of Supplement also, in addition to those two descriptions. Admitting 
that there is not much ilifTorence between a Bill of Review and a Bill in 
nature of a Bill of Review, I have considerable doubt upon this Bill ; 
whether the plaintiff must not, as far as he socks relief, determine, that 
hlB Bill shall be either a Bill of Review, or a Bill in nature of a Bill of 
Review; and, I apprehend, I should let in a mii^chievous practice, by not 
requiring him to make that determination, whether his cause should be 
treated as introduced by a Bill of the one or the other description. If it 
it eompetent to a plaintiff, not filing a Bill of Review, together with a Bill 
of Revivor and Supplement, in order to have the relief, which may bo 
obtained by such a Bill, but stating, that he will not determine, whether 
there is error apparent in the decree, contending that there is ; but, in 
caae it shall not prove so, electing in his prayer to make it a mere Bill of 
Revivor, or Supplement, or both, the conse^uc^nce is, that all the protection 
against a Bill of Review, founded on error apparent in the decree, is gono 
by the eflect of that alternative prayer. In the case of newly discovered 
facta, the leave of the Court must be obtained, which gives protection. 
But this difficulty occurs from putting the case in the alternative, that the 
defendant can neither plead nor demur. He must be brought to a hear- 
ing, and may incur all the vexation of a suit, whether it shall turn out to 
be a Bill of Review, or not. Tpon the»c grounds, I ha%'e considerable 
doubt, whether the plaintiff can put his case in the alternative, as a Bill 
of Review ; or, if the Court shall think it not so, then as a Bill of Re- 
vivor and Supplement. There is this difference between a Bill of Re- 
view, and a Supplemental Bill in nature of a Bill of Review : in the 
former, if introducing also matter of supplomrnt or revivor, the prayer, 
aa far as it is a Bill of Review, is, that the decree may l»e reviewed and 
reversed : in the other, adopting al«o the proj»er prayer for revivor, as lo 
the supplemental matter, you pray, that the cause may be reheard. In 
thai respect, also, I doubt, whcrther this is an accurate record in not 
stating poeitivcly the fact, whether the decree is cnmlled or not. If it is 
enrolled, the Bill is a Bill of Review, strictly s[>rakmg ; if not, it is a Bill 
in nature of a Bill of Review ; and then, acc<inhnff to Ixird Rcdesdale, 
the plaintiff, stating, that there is error in the decree, prays, that the 
cause may be reheard.** 

1 Mnaeel r. Morgan, 3 Brn. f'h. R. 79. 



446 EQUITY PLEADIKOS. [cH. Till. 

diction of Courts of Equity to grant relief against a 
former decree, where the same has been obtained by 
fraud and imposition ; for these will infect judgments 
at law and decrees of all Courts ; but they annul the 
whole in the consideration of Courts of Equity. This 
must be done by an original Bill; and there is no in- 
stance of its being done by petition ; although it seems 
once to have been thought, that a decree, as well as 
as any interlocutory order, could be set aside for fraud 
by petition only. Where a decree has been so ob- 
tained, the Court will restore the parties to their 
former situation, whatever their rights may be. This 
kind of Bill may be filed without leave of the Court 
being first obtained for the purpose, the fraud used in 
obtaining the decree being the principal point in issue, 
and being necessary to be established by proof, be- 
fore the propriety of the decree can be investigated.* 
§ 427. A decree obtained without making those per- 



1 Cooper, Eq. PI. 96-98, and cases there cited; Mitf. Eq. PI. by 
Jeremy, 92-94; Kennedy v. Daly, 1 Sch. & Left. 365, 374, 376; 
Barnesley v. Powell, 1 Ves. 120 ; Richmond v. Tayleur, 1 P. Will. 736, 
737. In Sheldon v. Fortescue Aland, 3 P. Will. Ill, the Lord Chan- 
cellor (King) said ; '* I admit even a decree, much more an interlocutory 
order, if gained by collusion, may be set aside on a petition ; a fortiori 
may the same be set aside by Bill." This doctrine was probably intend- 
ed to apply to a case, where the decree had not been enrolled, and where 
the fact of fraud could not be controverted. Mitf. Eq. PI. by Jeremy, 08, 
note (o). In Mussel v, Morgan, 3 Bro. Ch. R. 74, 79, Lord Thurlow ex- 
pressly overruled the doctrine in 3 P. Will. Ill, saying; ** There was oo 
instance hitherto of its being done ; and that he could not see a reason, 
why it should not be by an original Bill in the nature of a Bill of Reyiew. 
Either there is enough before the Court already to act upon, or not. If 
there is, it may be done by a rehearing ; if not, the new matter must b« 
brought before the Court "; that is, by an original Bill in the nature of a 
Bill of Review. See also Cooper, Eq. PL 96, note (o) ; Bennett v. 
Hamill, 2 Sch. & Lefr. 676. Where a decree has been enrolled by sur- 
prise, the plaintiff intending to move for a rehearing, and notice thereof 
having been given to the adverse party, the Court will set aside the enrol- 
ment. Stevens v. Guppy, 1 Turn. & Russ. 178. 






CH« VIII.] BILLS IMPEACHING DECREES. 447 

sons parties to the suit, in which it is had, whose rights 
are afiected thereby, is fraudulent and void as to those 
parties.^ And even a purchaser under it, having no- 
tice of the defect, is not protected by such decree ; 
for otherwise the decree of a Court of Equity might 
be used as an engine for the purpose of effecting 
the grossest fraud.^ And, therefore, where a decree 
has been made against a trustee, the cestui que trust 
not being before the Court, and the trust not dis- 
covered; or where a decree has been made against 
a person, who has made some conveyance or incum- 
brance not discovered; or where a decree has been 
made in favor of or against an heir, when the an- 
cestor has in fact disposed by will of the subject- 
matter of the suit ; the concealment of the trust, or 
subsequent conveyance, or incumbrance, or will, in 
these several cases, ought to be treated as a fraud.' 
It has been also said, that where an improper de- 
cree has been made against an infant, although the 
same were not gained by fraud, or collusion, or sur- 
prise, it ought to be impiuichcd by original Bill; and 
the infant, aggrieved by it, need not stay till he is 
of age ; but he may apply to reverse it, as soon as 
he thinks fit. 



I Cooper, Eq. PI. lHJ-98, and cases before cited. Mr. Coopt^r 
(Cooper, £q. PI. 9H) has placed the case of Coker v. Hevis, 1 Ch. Cas. 
61, under this head, as a c.nst' of fraud in obtaining a decree. Tlie de- 
cree does not 8i>ein to have put the xv\'w( (vrantcd upon the pntund uf 
fraud ; but upon the (rround, that the original decree for a foreclosure, un- 
less the money was paiil at a certain time, had not b4>en complied with 
from circumstances of inevitable necessity, and without wilful default ; 
and that, therefore, the defendant ou^'ht to have the time for payment of 
tlic mortgage money enlar{;ed, notwithstanding^ the diM*ree had by la)uH.' of 
time become alwolute. I^ird Redi'sdale has treated this case, as not so 
mocb founded in fraud, as on its own special circumstances. See Mitf. 
£i|. PI. by Jeremy, Mi and note (i). 

a Ibid. 3 IbiAl. 





448 EQUITY PLEADINGS. [cH. VIII. 

§ 428. A Bill to set aside a decree for fraud, or 
upon any of the above grounds, must state the de- 
cree, and the proceedings, which led to it, with the 
circumstances of fraud, or whatever the ground may 
be, on which it is impeached. The prayer must 
necessarily be varied according to the nature of the 
fraud, or the other improper means used, and the ex- 
tent of their operation in obtaining an improper de- 
cision of the Court.^ 

§ 429. Fifthly ; Bills to carry decrees into execu- 
tion. Sometimes, from the neglect of parties, or some 
other cause, it becomes impossible to carry a decree 
into execution without the further decree of the Court. 
This happens, generally, in cases where parties hav- 
ing neglected to proceed upon the decree, their rights 
under it become so embarrassed by a variety of sub- 
sequent events, that it is necessary to have the de- 
cree of the Court to settle and ascertain them. Some- 
times, such a Bill is exhibited by a person, who was 
not a party ; or who does not claim under any party 
to the original decree ; but who claims in a similar 
interest; or who is unable to obtain the determina- 
tion of his own rights, till the decree is carried into 
execution. Or, it may be brought by or against a 
person, claiming as assignee of a party to the decree.* 

§ 430. The Court in these cases, in general, only 
enforces, and does not vary, the decree. But upon cir- 
cumstances it has sometimes considered the original 
directions, and varied them in case of mistake.^ And 



1 Cooper, Eq. PI. 98, and cases there cited ; Mitf. Eq. PI. by Jeremy, 
94; Giffard v. Hort, 1 Sch. & Lefr. 386; Kennedy v, Daly, 1 Sch. & 
Lefir. 355, 374, 375. 

3 Mitf. Eq. PI. by Jeremy, 95, and cases there cited ; Cooper, Eq. PI. 
98, 99. 

3 Mitf. Eq. PI. by Jeremy, 95, 96, and cases there cited ; Cooper, Eq. 
PI. 99. 



CH. VIII.] BILLS TO EXECUTE DECREES. 449 

it has even, on circumstances, refused to enforce the 
decree ; although, in other cases, the Court, and the 
House of Lords, upon an appeal, seem to have con- 
sidered, that the law of the decree ought not to be 
examined on a Bill to carry it into execution.^ 

§ 431. Such a Bill may also be brought to carry 
into execution the judgment of an inferior Court of 
Equity, if the jurisdiction of that Court is not equal 
to the purpose; as in the case of a decree in Wales, 
which the defendant has avoided by flying into Eng- 
land. In such a case, the Court has thought itself 
entitled to examine the justice of the decision, al- 
though it has been affirmed in the House of Lords.* 
But it has been justly remarked, that on that occa- 
sion the Court suflcred its anxiety to do justice to 
cany it far beyond the limits of its jurisdiction.' 

^ 432. A Bill for this purpose is, generally, partly 
an original Bill, and partly a Bill in the nature of 
an original Bill, although not strictly original; and 
sometimes it is likewise a Bill of Revivor, or a sup- 
plemental Bill, or both. The frame of the Bill is 
varied accordingly.^ 



1 Ibid. 

* Mitf. Eq. PI. by Jeremy, 00, 97, and cases there cited; Cooper, Eq. 
PI. 00, 100. 

* Cooper, Eq. PI. lOO; Galbraith v. Neville, Doujr- R. 5, note (2). 

* Mitf. Eq. PI. by Jeremy, 97. See Pott v. Galliiii, I Sim. & Stu. 
S06. 



EQ. PL. 57 



450 EQUITY PLEADINGS. [CH. IX. 



CHAPTER IX. 



MODES OF DEFENCE. 



^ 433. Having disposed of the general considera- 
tions applicable to the frame and structure of Bills, 
we shall now proceed to the consideration of the gen- 
eral nature of the matters of defence to Bills, which 
may be insisted on in Courts of Equity, and of the 
various modes, in which those matters may or should 
be asserted. 

^ 434. The matters of defence, which may be re- 
lied on in Courts of Equity, are, in their nature, sus- 
ceptible of two divisions, namely: (1.) Into those, 
which are dilatory, which merely dismiss, or suspend, 
or obstruct the suit, without touching the merits, until 
the impediment or obstacle insisted on is removed ; 
and, (2.) Into those, which are peremptory, and per- 
manent, and go to the entire merits of the suit. Dila- 
tory defences may again be divided into four sorts ; 
first, to the jurisdiction of the Court, insisting, that the 
Bill is not preferred to the proper tribunal, which is 
authorized to entertain the case upon its merits ; sec- 
ondly, to the person, that the Bill is preferred by or 
against an improper person, not competent to maintain 
or defend it; thirdly, to the form of proceedings, that 
the suit is irregularly brought, or defective in its ap- 
propriate allegations or parties ; and, fourthly, to the 
propriety of maintaining the suit itself, because of the 
pendency of another suit for the same controversy.* 

^ 435. Peremptory, or permanent defences, may be 

1 I Mont. Eq. PI. 88, 89. 



CH. IX.] MODES OF DEFENCE. 451 

divided into two sorts ; first, those which insist, that 
the plaintiff never had any right to institute the suit ; 
and, secondly, those which insist, that the original 
right, if any, is extinguished or determined. Under 
the former head may be included the following de- 
fences; (1.) That the plaintiflf has not a superior right 
to the defendant ; (2.) That the defendant has no in- 
terest; and, (3.) That there is no privity between the 
plaintiff and defendant, or any other right to sustain 
the suit. Under the latter head may be included the 
following defences ; (1.) That the right is determined 
by the act of the parties; or, (2.) That it is deter- 
mined by operation of law.* 

^ 436. In regard to the modes of defence, they arc 
of four sorts. (1.) By demurrer, by which the defend- 
ant demands the judgment of the Court, whether he 
shall be compelled to answer the Bill, or not. (2.) By 
plea, whereby he shows some cause, why the suit 
should be dismissed, delayed, or l>arred. (3.) By an- 
swer, which, controverting the case stated by the Bill, 
confesses and avoids it ; or traverses and denies the 
material allegations in the Bill ; or, admitting the case 
made by the Bill, submits to the judgment of the 
Court upon it ; or relies upon a new case, or upon new 
matter stated in the answer, or upon both. (4.) By 
disclaimer, which seeks at once a termination of the 
suit, by the defendant's disclaiming all right and inter- 
est in the matter sought bv tln^ Bill.^ 

§ 437. It has been well remarked, in further illus- 
tration of these different modes of defence, thai the 
form of making defence varies according to the foun- 
dation, on which it is made, and the extent, in which 

• I Mont. K»\. PI. Hi». 

« Mitf. F^i. PI. by Jrniny, 13, 11, 106; Cooi)er, Va\. PI. lOH, HO, 
333, 309, 313 ; Wyatt, Pr. Rep. U, 162, 175, 324. 



452 EQUITY PLEADINGS. [CH. IX. 

it submits to the judgment of the CourtJ If it rests 
on the Bill, and, on the foundation of matter there 
apparent, demands the judgment of the Court, wheth- 
er the suit shall proceed at all, it is termed a Demur- 
rer.^ If it rests on the foundation of new matter 
offered, it demands the judgment of the Court, wheth- 
er the defendant shall be compelled to answer further, 
it assumes a different form, and is termed a Plea.' If 
it submits to answer generally the charges in the Bill, 
demanding the judgment of the Court on the whole 
case made on both sides, it is offered in a shape still 
different, and is simply called an Answer.* If the de- 
fendant disclaims all interest in the matters in question 
by the Bill, his answer to the complaint made is again 
varied in form, and is termed a Disclaimer.® All, or 
any of these modes of defence may be joined, pro- 
vided each relates to a separate and distinct part of 
the Bill.« 

§ 438. The grounds, on which defence may be 
made to a Bill, either by answer, or by disputing the 
right of the plaintiff to compel the answer, which the 
Bill requires, are various, both in their nature and in 
their effect. Some of them, although a complete de- 
fence as to any relief, are not so as to a discovery ; 
and, when there is no ground for disputing the right of 
the plaintiff to the relief prayed ; or if the Bill seeks 
only a discovery, yet if there is any impropriety in re- 
quiring the discovery ; or if it can answer no purpose 
for which a Court of Equity ought to compel it ; the 
impropriety of compelling the discovery, or the imma- 
teriality of the discovery, if made, may be used as a 

1 Ibid. 

2 Mitf. Eq. PI. by Jeremy, 13, 14. 3 ibid. 4 ibid. 5 ibid. 

« Mitf. Eq. PI. by Jeremy, 14, 106 ; Livingston v. Story, 9 Peters, 
R. 632. 



CH. IX.] MODES OF DEFENCE. 453 

ground to protect the defendant from making it.^ Dif- 
ferent grounds of defence, therefore, may l)e applica- 
ble to different parts of a Bill. And every species of 
Bill requiring its own peculiar ground to support it, 
and its own {xxuliar form to give it effect, a deficiency 
in either of these points is a ground of defence to it.' 

^ 439. In many cases, the same matter may l)e in- 
sisted upon as a defence, either by demurrer, or by 
plea, or by answer. In some cases, the defence can 
be made only by demurrer ; in some only by plea ; 
and in others a^ain onlv bv answer. The defendant 
may also demur to one part of a Bill, plead to another, 
answer to another, and disclaim as to another.' The 
same objections do not (as we have just seen) always 
lie to a Bill of Discovery only, as do lie to a Bill of 
Discovery and Relief. And matters of defence may 
be made ag^iinst Bills not original, which are inappli- 
cable to original Bills, or to Bills in the nature of 
original Bills. But, as the defences, which may be 
made to original Bills, in their variety comprehend 
the defences which mav l)e made to everv other kind 
of Bill, except such as arise from the })eculiar form 
and object of each kind,^ it will be convenient for us 
in our future in(|uiries, first, to treat of defiances to 
original Bills ; and then, secondly, to treat of defences 
to Bills not oriirinal ; and. thirdly and lastly, to treat 
of defences to Bills in the nature of original Bills. 

§ 440. Original Bills have Ix^en already divided into 
two kinds, namely : ( 1.) Original Bills praying relief; 
and (2.) Original Bills, not praying relief. We shall 
first consider the several defences belonging to origi- 



« Mitf. K-i- PI. hy Jenmy. 107. 
« Miif. V\ PI. by JiTcniy. KM'., 107. 
3 Miif. Va\. pi. by Jeremy. 3I«. 
« Mitf. £q. PI. by Jeremy, 109. 



454 EQUITY PLEADINGS. [CH. IX. 

nal Bills for relief, which, of course, include a prayer 
for discovery, as well as for relief; and afterwards, we 
shall consider the defences peculiar to the other kinds 
of Bills.' 

§ 441. In treating of defences to original Bills for 
relief, we shall, in the first place, consider those, which 
may be taken by demurrer.^ We have already had 
occasion to remark, that demurrers to relief frequently 
include a demurrer to discovery, and demurrers to dis- 
covery only sometimes consequentially affect the relief; 
and that if a demurrer to relief is good, it is of course 
in England, although not in America,^ a good bar to 
the discovery.* The word demurrer comes (as Lord 
Coke has said) from the Latin word demorari, to 
abide ; and, therefore, he that demurreth in law, is said 
to abide in law ; Moratur, or demoratur in lege. He 
will go no further, until the Court has decided, whether 
the other party has shown sufficient matter in point of 
law to maintain his suit.* A demurrer is then in the 
nature of a declinatory exception in the Civil Law, 
which was always put in before the Praetor, ante lUem 
contestatam.^ 



1 See Mitf. Eq. PI. by Jeremy, 109. 

* The 3 let Rule of the Equity Rules of the Supreme Court of the 
United States, January Term, 1842, declares; *'No demurrer or plea 
shall be allowed to be filed to any Bill, unless upon a certificate of coun- 
sel, that in his opinion it is well founded in point of law, and supported 
by the aflidavit of the defendant, that it is not interposed for delay ; and 
if a plea, that it is true in point of fact." 1 Howard, R. Introd. 51 ; 
17 Peters, R. App'x, 69. 

3 Ante, § 312 ; Post, § 704, 751, note. 

* Ante, \ 312; Post, § 545; Mitf. Eq. PI. by Jeremy, 109, 110. 
« Co. Litt. 71, i; Cooper, Eq. PI. 110; 3 Black. Comm. 314. 

« Gilb. For. Rom 50. The 32d Rule of the Equity Rules of the 
Supreme Court of the United States, January Term, 1842, declares; 
** The defendant may, at any time before the Bill is taken for confessed, 
or afterwards, with the leave of the Court, demur or plead to the whole 
Bill, or to part of it, and he may demur to part, plead to part, and answer 



CH. IX.] DEMURRERS. 455 

^ 442. A demurrer may be to the whole Bill, or to 
a part only of the Bill ; and the defendant may there- 
fore demur as to a part, plead as to another part, and 
answer as to the rest of the Bill. But care must be 
taken, that each of these modes of defence is actually 
applied to different and distinct parts of the Bill, and 
that, as applied, each is consistent with the other ; so 
that one does not overrule the other.* Thus, for ex- 
ample, if there is a demurrer to the whole Bill, an 
answer to a part thereof is inconsistent ; and the de- 
murrer will be overruled.^ For the same reason, if 
there is a demurrer to a part of a Bill, there cannot 
be a plea or answer to the same part, without over- 
ruling the demurrer.' 

^ 44d. If a demurrer is too general, that is, if it 
covers, or is applied to the whole Bill, when it is good 
to a part only ; or if it is a demurrer to a part of a 
Bill only, but yet is not good to the full extent, which 
it covers, but is so to a part only, it will be overruled ; 
for it is a general rule, that a demurrer (it is otherwise 



as to the residue; but in every case, in uhich the Bill specially charges 
fraud or combination, a plpa to «urh part must be accompanied with an 
answer fortifying the plea, and explicitly denying the fraud and combina- 
tion, and the facts on which the charge is founded. '* Post, $ 161 ; 1 How- 
ard, R. Introd. 51 ; 17 Petpni, R. App*x, IG. 

1 Cooper, &1. PI. lie. lia. 

• Cooper, Vm\. PI. 112 : Tidd v. flare, 2 Dick. 712 ; Mitf. Eq. PI. by 
Jeremy, 300, 210; Pnrtarhnfrton v. Soulby, <> Sim. 350; Davies v. Da- 
Ties, 9 Keen, R. 53^. 

3 Cooper, Eq. PI. 113; Jonus r. Strafford, 3s ; 3 P. Will. 80 ; Dor- 
mer 9. Fortescue, 2 Atk. 2r^2 ; Clark v. Phelps, fi John. Ch. R. 2U. 
The 37lh of the Kngiiflh Chancery Orders of IMI abolishes this doctrine. 
Il declares ; *' That no demurrer or plea shall be held bad and overruled 
upon argument, only bcrausr the answer of the defendant may extend to 
aoma part of the same mattt-r as may he covered by such demurrer or 
plea." 1 Craig 6l Phill. R. 379. The same rule has been adopted by 
the Supreme Court of the United States. Rule 37 of the Equity Rules. 
Jaauary Term, 1M9. 



456 EQUITY PLEADINGS. [CH. IX. 

as to a plea) cannot be good as to a part, which it 
covers, and bad as to the rest ; and therefore it must 
stand or fall altogether.^ So, if a demurrer does not 
cover so much of the Bill, as it might by law have ex- 
tended to, it has been held to be bad.^ But a demur- 
rer may be put in, and several causes assigned ; and if 
one cause is good to the whole extent of the demurrer, 
and another is bad, the demurrer will be sustained ; 
for, if both were bad, th« defendant may, ore tenus^ 
assign new causes of demurrer at the argument to mat- 
ters of substance, although not to matters of form ; so 
that any one good cause, existing of record, or other- 
wise assigned, will do.^ 



1 Cooper, Eq. PL 112, 113; Metcalf v. Hervey, 1 Vea. 848; Vcr- 
planck V. Caines, 1 John. Ch. R. 57; Higginbotham o. Burnet, 5 John. 
Ch. R. 136 ; Todd v. Gee, 17 Ves. 273 ; Knight r. Moseley, Ambl. R. 
176 ; Jones v. Frost, Jac. R. 466 ; Wynne v. Jackson, i McClell. & 
Younge, 35 ; Jones v. Frost, 3 Madd. R. 8 ; Attorney General «. Brown, 
1 Swanst. R. 304 ; Kuypers v. Dutch Reformed Church, 6 Paige, R. 570 ; 
1 Mont. Eq. PI. 99, 100, 110. Lord Redesdale, after stating, that where 
a demurrer is put in, which is too extensive, it is generally considered thai 
the demurrer must be overruled, has added, *' but there are instances of 
allowing demurrers in part." And he cites 2 Eq. Abridg. 759 ; 2 Bro. 
Pari. Cas. 514, Toml. edit. The doctrine of the text is now, however, 
firmly established. Mayor of London v. Levy, 8 Ves. 403 ; Baker «. 
Mellish, 1 1 Ves. 70 ; Todd v. Gee, 17 Ves. 280. See also Mitf. Eq. PI. by 
Jeremy, 214, note (i). Where a demurrer is too extensive, the Court 
will, if a fair case is made, in its discretion, give leave, upon proper terms, 
to the defendant to amend his demurrer by narrowing its terms. Cooper, 
Eq. PI. 112, 113, 115; Mitf. Eq. Pi. by Jeremy, 214, 215, and cases there 
cited; Baker v. Mellish, 11 Ves. 70. See Dell «. Hale, 2 Younge & 
Coll. New R. 1,3; Post, § 692. 

8 Dawson v. Sadler, 1 Sim. & Stu. R. 537,542. This doctrine is now 
changed by the 36th of the Orders of the English Court of Chancery, 
1841, which provides, ^* That no demurrer or plea shall be held bad and 
overruled upon argument, only because such demurrer or plea shall not 
cover so much of the Bill as it might by law have extended to." 1 Craig 
& Phill. R. 379. The same rule has been adopted by the Supreme 
Court of the United States. Rule 36 of the Equity Rules, January 
Term, 1842. See also Dell t. Hale, 2 Younge & Coll. New R. 1. 

3 Cooper, Eq. Pi. 112, 113; Jones o. Frost, Jac. R. 468; Barnes, 
Ord. in Chan. 174. 



CH. IX.] DEMURRERS. 457 

^ 444. And a defendant may put in separate de- 
murrers to separate and distinct parts of a Bill for sep- 
arate and distinct causes; for the same grounds of 
demurrer frequently will not apply to different parts of 
a Bill. And if separate demurrers are put in to differ- 
ent and distinct parts of a Bill, one demurrer may be 
overruled upon argument, and another be allowed.^ 
So that, in this way, the hazard of one general de- 
murrer to all the objectionable parts of a JBill may be 
avoided. 

^ 445. Where there are several defendants, if they 
all join in one demurrer to a Bill, the demurrer may bo 
good, and be allowed, as to one of the defendants, and 
be bad, and disallowed as to the other defendants ; for 
the defence may be good as to one person, and be 
wholly inapplicable to another.' And there is a clear, 
although a nice, distinction between a demurrer, which 
is too large in regard to all the defendants, and one, 
which is too large or inapplicable to some of the de- 
fendants. In this respect, there is a difference between 
pleadings in law and in Equity ; for a joint demurrer, 
or a joint plea, bad as to one defendant, is at law bad 
as to all. 

§ 446. Whenever any ground of defence is apparent 
on the Bill itself, either from the matter contained in 
itf or from the defect in its frame, or in the case made 
by it, the pro{)er mode of defence is by demurrer.^ A 
demurrer is an allegation of a defendant, which, ad- 
mitting the matters of fact alleged by the Bill to lie 
true, shows, that as they are therein set forth, they are 
insufficient for the plaintiff to proceed upon, or to oblige 



I Cooper, Ei\. PI. 113 ; Mitf. Ki). PI. by Jeremy, 211, 215. 

* Cooper, ¥a\. pi. 113 ; Mayor of liondon v. Ijery, 8 Yes. 403, 401. 

' Mitf. Eq. Pl. by Jeremy, 107. 

EQ. PL. 58 



458 EQUITY PLEADINGS. [CH. IX. 

the defendant to answer ; or that for some reason ap- 
parent on the face of the Bill, or because of the omis- 
sion of some matter, which ought to be contained 
therein, or for want of some circumstance, which ought 
to be attendant thereon, the defendant ought not to be 
compelled to answer.' It therefore demands the judg- 
ment of the Court, whether the defendant shall be 
compelled to make answer to the plaintiff's Bill, or to 
some certain part thereof.* 

§ 4f47. The causes of demurrer must be upon some 
matter in the Bill, or upon the omission of some matter, 
which ought to be therein, or attendant thereon ; and 
hot upon any foreign matter alleged by the defend- 
ant.' The principal ends of a demurrer are, to avoid 
a discovery, which may be prejudicial to the defend- 
ant, or to cover a defective title, or to prevent an 
unnecessary expense. If no one of these ends is ob- 
tained, there is little use in a demurrer.* For, in gen- 
eral, if a demurrer would hold to a Bill, the Court, 
although the defendant answers, vdll not grant relief 
upon hearing the cause. There have been, however, 
cases, in which the Court has given relief upon the 
hearing, although a demurrer to the relief would proba- 
bly have been allowed. But such cases are rare.* 

§ 448. From what has been said, as to the nature 
and ofifice of a demurrer, it is clear, that it can be only 
for objections apparent upon the face of the Bill itself, 
either from the matter inserted, or omitted therein, or 
from defects in the frame or form thereof.^ It cannot, 
therefore, state, what does not appear upon the face of 



1 Mitf. Eq. PI. by Jeremy, 107. 8 ibid. 

3 Mitf. Eq. PI. by Jeremy, 107, 108, and cases there cited ; Wyatt, 
Pr. Reg. 162. 
* Ibid. 5 Ibid. 

Beames, Ord. in Chan. 26. 



CH. IX.] DEMURRERS. 459 

the Bill, otherwise it would be, what has been emphat- 
ically called, a speaking demurrer ; that is, a demurrer, 
where a new fact is introduced to support it.* Thus, 
for eicample, where a Bill was brought to redeem 
a mortgage, and it did not allege possession in the 
mortgagor within twenty years, otherwise than by say- 
ing, that in or about the year 1770, the plaintiff's 
ancestor (the mortgagor) died, and soon after the de- 
fendant took possession ; and a demurrer was put in, 
and alleged for cause, that it ap|icared upon the face 
of the Bill, that from the year 1770, "which is up- 
wards of twenty years before the filing of the Bill," 
the defendant had been in possession, and the plaintiff 
was under no disability, &c., and had shown no right 
to redeem ; the Court overruled the demurrer, saying 
it was a speaking demurrer, containing an averment of 
a matter of fact, the possession for twenty years by de- 
fendant, which did not appear in certainty on the face 
of the Bill.* We shall presently have occasion to con- 
sider more fully the proper frame of a demurrer.^ 
^ 449. A demurrer being (as we have seen) always 

upon matter apparent on the face of the Bill, and not 
upon any matter alleged by the defendant, it some- 



1 Cooper, Rq. PI. Ill ; Davics v. Williams, 1 Sim. R. 5; Brooks v. 
(jibbons, 4 Pai(?e, U. 371 ; Brownswonl o. Kd wards, 3 Ves. SI5 ; Kdscll 
9, Buchuian, U Yes. jr. R3 ; S. C:. 1 Bro. Th. K. 351; Cawihornc v. 
Chalie, 3 Sim. & Stu. 139; Kuypers v. Dutch Ueformed Cliurch, 
Paifre, R. 570. 

> KdBell V. Buchanan, 4 Bro. Ch. R. 354 ; S. C. 3 Vcs. jr. 83 ; Brooks 
9. Gibbons, 4 Paigo, R. 371. But if the lapse of more than twenty years 
had appeared with certainty upon the face of the Bill, the objection niiirht 
hare been taken by demurrer. 1 ladle y r. Healey, 1 Vi?8. * B. r>3« ; 
Foster «. Hod^rson, 1» Ves. HO; Barron v. Martin, i« Ves. 337 ; S. C. 
Cooper, R. IH9; Mr. Iielt> note to Deloramc v. Browne, 3 Bro. Ch. R. 
633; lloare v. Peck, « Sim. R. 51 ; llovcnden v. Annesley, 3 .Sch. & 
Lcfr. 637; Mitf. Vai. PI. by Jeremy, 313 and note. 

3 Post, ^ 457. 



460 EQUITT PLEADIIfGS. |^GMr» iS. 

times happens, that a Bill, which, if all the part^ of the 
case were fully disclosed, would be open to a demur- 
rer, is so artftillj drawn, as to avoid showing upon the 
face of it any cause of demurrer. In thk case, the 
defendant is compelled to resort to a plea, by Which 
he may allege matter, which, if it appeared upon the 
fece of the Bill, would be a good cause of demurrer. 
For in many cases, what is a good defence by way of 
plea, is also good by way of demurrer, if the fects ap^ 
pear sufficiently by the Bill.^ But of this sulject more 
will be said hereafter.^ 

§ 450. Where the facts relied on as a matter of de- 
fence by the defendant, are stated in the Bill only by 
way of pretence, and not expressly charged, it is not 
generally safe to demur to the Bill, unless the whole 
right against the defendant is founded on that charge.* 
Thus, for Example, where a Bill relied on a decree, di- 
recting a conveyance, and the decree was stated only 
by way of pretence, and not expressly charged ; the 
Court at first doubted, whether the defence could be 
taken by demurrer, and ought not to have been taken 
by plea, as the decree was not averred in a direct 
statement. But the demurrer was at last held good, 
upon the ground, that without that conveyance the 
plaintiff had no title ; and the relief prayed turned upon 
the due execution of the conveyance.* 

§ 451. So, where a Bill stated the sale of an office, 
and prayed an account of the profits, a demurrer was 
held not to lie, upon the ground of the sale of the 
office being illegal ; because there was no sufficient 



1 Mitf. Eq. PI. by Jeremy, 216. 
a Post, § 647, 652. 

3 Fletcher v. Toilet, 6 Ves. jr. 3; 1 Mont. Eq. PI. 94. 

4 Ibid. 



CH. IX.] DEMURRERS. 461 

averment in the Bill, that the office was one within the 
reach of the prohibition of the statute of 5th and 6th 
of ELdward VL^ So, where a Bill quia timet was 
brought, founded upon an equitable lien for the pur- 
chase money of an estate ; and the Bill stated, that a 
bond was taken, as a farther and additional security ; a 
demurrer to the Bill, upon the ground, that the taking 
of the bond was a waiver of the lien, was overruled ; 
for the allegation of the Bill was, that it was taken as 
additional security; and if it was not, the objection 
should be in another form.^ 

§ 452. A demurrer necessarily admits the truth of 
the facts stated in the Bill, so far as they are relevant 
and are well pleaded ; but it does not admit the con- 
chincMis of law drawn therefrom, although they are 
also alleged in the Bill.^ Thus, if a demurrer extends 
to any particular discovery, the matter sought to l)e 
discovered, and to which the demurrer extends, is 
taken to be as stated in the Bill. And if the defendant 
demurs to the relief only, the whole case made by the 
Bill, to ground the relief prayed for, is considered as 
true. A demurrer is, therefore, always preceded by a 
protestation against the truth of the matters contained 
in the Bill, a practice borrowed fcom the Common 
Law, and probably intended to avoid any conclusion in 

I HickBV. Raincuck, 1 Cox, R. 40. 

* Brabftod v. Hoskins, 3 Prico, R. 31. 

> Cooper, Eq. PI. Ill ; Mitf. F^i- PI. by Jcr<-my,21l, 212; Willianis r. 
Steward, 3 Merir. R. 472, 492 ; Ford v. Peering;, 1 Vcs. jr. 77; Vmi In- 
dia Co. 9. Henchman, 1 Vvh. jr. 21U ; Wyatt, Pr. Rep. 103; Penfold r. 
Nunn, 5 Sim. R. 40:1. In Hakir r Booker, fi Priw, 3HI, Haron WwmI 
■aid ; " A demurrer only .'idniitn matti-ni positivi-ly allpf^ed in the Dill ; 
not every fanciful prrtfiiro Hu^r^f>HU;fl.** Hut thiH proposition must Im 
taken sub modo; fur if a fart tx* not )>n»ttively aMwrteil, and yet it is ma- 
terial, and ia stated in terms, which may be deemed reasonably certain in 
their import, the demurrer will aihnit them. 



462 EQUITY PLEADINGS. [CH. iJL» 

another suit; for in the present suit it is wholly with- 
out effect.^ 

§ 453. In regard to the appropriate use of a de- 
murrer, it may be stated as a general rule, that when- 
ever the ground of objection or defence is apparent on 
the face of the Bill itself, either from matter contained 
in it, or from defect in its frame, the proper mode of tak- 
ing it is by demurrer, and not by way of plea.' Hence, 
if the case of the plaintiff, as stated in his Bill, will not 
entitle him to a decree, the proper course is for the 
defendant to insist upon it by way of demurrer, al- 
though it may be equally fatal at the hearing.* When 
the Bill is defective in substance, it is in general ad- 
visable to demur, because it saves unnecessary ex- 
pense to all parties. When the objection is to a defect 
in matter of form, the objection may, and indeed ordi- 
narily must be taken by demurrer.* 

^ 454. The want of due form substitutes a just ob- 
jection to the proceedings in every Court of Justice ; 
for to reject all form would be destructive of the law 
as a science, and would introduce great uncertainty 
and perplexity in the administration of justice.* Every 
irregularity of this sort is fraught with inconvenience, 
and generally tenjjs to delays and doubts. And it has 
been well remarked, that infinite mischief has been 
produced by the facility of Courts of Justice in over- 
looking errors in form. It encourages carelessness; and 
places ignorance too much on a footing with knowl- 

1 Mitf. Eq. PI. by Jeremy, 107, 211, 212; Cooper, Eq. PI. HI ; Post, 
§457. 

a Cooper, Eq. Pi. 118; Billings v. Flight, 1 Madd. R. 230; Hinde, Ch. 
Pr. 154 ; 2 Madd. Ch. Pr. 224. 

3 Hovenden v, Annesley, 2 Sch. & Lefir. 638; Barker v. Dacie, 6 Ves. 
686. 

4 Post, ^ 528. 

5 Cooper, Eq. PI. 118. 



CH. IX.] * DEMURRERS. 463 

edge amongst those, who practice the drawing of plead- 
ings.* To which it may be added, that it often ex- 
poses the parties themselves to no small hardship, by 
embarrassing them at every step in the progress of the 
cause ; and involving the merits of the cause in super- 
fluous details and inartificial allegations, at once loose, 
obscure, and misleading. In practice, however, objec- 
tions to slight mistakes of form are not usually insisted 
on, where there are merits in the cause, nor unless the 
Bill seeks to enforce some harsh and rigorous claim.^ 

§ 465. Demurrers arc either general or special. 
They are general, when no particular cause is assign- 
ed, except the usual formulary (to comply with the 
rules of the Court), that there is no Equity in the Bill.^ 
They are special, when the particular defects or objec- 



^ Lord Chief Justice Eyre in Morgan v. Sargent, I Bos. & Pul. 59 ; 
Cooper, Eq. PI. IIB. 

* Mr. Barton, in a note (2) to his work on Suits in Equity, p. 113, re- 
marks, that " Courts of Equity are apt, and with reason, to look witli a 
■uapieious eye upon defendants, who, by availing themselves of every 
cause of demurrer or plea, show an unwillingness fairly to meet the 
plaintiff's case. It is seldom, therefore, advisable to have recourse to 
these modes of defence, unless to prevent the expense of an examination 
of witnesBes, or to avoid a discovery, which might be detrimental to the 
defendant*! just and rightful interests. And, upon this principle of dis- 
foantcnancing these dilatory pleas, and encouraging an 0(>cn and m:inly 
defcnoe, have proceeded many of those cases, which we have had occa- 
■ion to refer to. But, indei>endent of these considerations, it is somo- 
iimee prudent to fore(?o the benefit i»f those defences, and submit to 
answer the complainnnt'.s Hill ; by which means the defendant has fre- 
quently an opportunity of pressing upon the Court, by his answer, facts 
and circumstances in rebuttal of the pl:iintitV*s clainis, which could ni>t, 
conaistently with the r»tabliBhe<i nuide of pleading, be offered together 
with such dcfencPH.'* 

3 The neual formulary is; *' And for causes of demurrer say, that the 
complainant's said Bill of complaint, in ca^e tht; same were truf, which 
these defendants do in no wise admit, contains not any matter of Fiiiuity, 
whereon this Court can ground any decree, or givu the complainnnt any 
relief or aaeistancc, as against them, these defendants.*' Barton's Suit 
in Equity, 107, 108. 



464 EQUITY PLEADINGS. [C0. |X« 

lions are pointed out. The former will be sufficient 
(although special causes are usually stated) when the 
Bill is defective in substance. The latter is indispen- 
sable, where the objection is to the defects of the BiU 
in point of form.* By the rules of Courts of Equity, 
every demurrer is required to contain the causes there- 
of ;' and they must be set down with reasonable cer- 
tainty and directness.^ 

^ 456. Demurrers, though sometimes for dilatory 
causes, in the nature of a plea in abatement, are al- 
ways in legal effect in bar of the suit, praying for a 
dismissal of it.^ But there is this difference, that 



^ Cooper, £q. PI. 118. The common form of a general demmrer is as 
follows; '* These defendants, by protestation, not confessing all or any of 
the matters and things, in the said complainant's Bill contained, to be troe 
in such manner and form, as the same are therein set forth and alleged, 
do demur to the said Bill, and for cause of demurrer show, that the said 
complainant has not, by his said Bill, made such a case as entitles him, 
in a Court of Equity, to any discovery from these defendants reepectiTely, 
or any of them, or any relief against them, as to the matters contained in 
the said Bill, or any of such matters; an(} that any discovery, which can 
be made by these defendants, or any of them, touching the matters com- 
plained of in the said Bill, or any of them, cannot be of any avail to the 
said complainant for any of the purposes, for which a discovery is sought 
against these defendants by the said Bill, nor entitle the said complainant 
to any relief in this Court, touching any of the matters therein complained 
of. Wherefore, and for divers other good causes of demurrer appearing 
in the said Bill, these defendants do demur thereto ; and they pray the 
judgment of this honorable Court, whether they shall be compelled to 
make any further and other answer to the said Bill ; and they humbly 
pray to be dismissed from hence, with their reasonable costs in this be- 
half sustained." (Van Heyth. Eq. Drafts. 419.) 2 Harrison, Ch. Pr. by 
Newl. p. 607. The form in Barton's Suit in Equity, p. 107, 108, is more 
concise and succinct. See same form. Post, ^ 483, note. 

2 Beames, Ord. in Chan. 77, 173. 

3 Barton's Suit in Eq. 108, note (1) ; Mitf. Eq. PI. by Jeremy, 213, 
214. 

^ Roberdeau o. Rous, 1 Atk. 544; 2 Madd. Ch. Pr. 225; JoncHs v. 
Strafford, 3 P. Will. 80. Lord Loughborough, in Brooke v. Hewitt, 3 
Ves. 255, said ; " A demurrer must be founded upon this, that it is aa 
absolute, certain, clear proposition, that the Bill would be dismissed, with 



CH. IX.] DEMURRERS. 465 

where the suit is dismissed upon a hearing upon the 
merits, it is ordinarily, unless the dismissal is without 
prejudice, a bar to another Bill ; whereas, if the Bill 
is dismissed for defect of form or structure of it, not 
going to the merits, it is no bar to a future suit for the 
same subject-matter.^ It may also be remarked, in 
this connection, that demurrers are inapplicable to 
pleas, or to answers. If a plea be bad in substance, 
the course is not to demur to it, but to set it down for 
argument ; and, if then found bad, it is at once over- 
ruled.* If an answer is insufficient in its responses to 
the charges and statements in the Bill, the objections 
are to be taken to it by exceptions filed.' If it be in 
substance bad as a defence, and no farther proofs are 
required by the plaintiff, the case can be set down for 
a hearing upon the Bill and answer, and will be ad- 
judged accordingly. 

^ 467. In regard to the frame of a demurrer, it re- 



cosU, at the hearing.** ThU is true as to demurrers for defects in the 
substance of the Bill. But it does not apply to matters of form. Lord 
Hardwicke, in Roberdcau v. Rous, 1 Atk. K. 544, is made to say ; ^* The 
defendant should not have demurred for want of jurisdiction ; for a de- 
marrer is always in bar, and froe.** to the merits of the case ; and therefore 
it IS mformal and impniper in this respect ; for he should have plea<led 
to the jurisdiction/* This language is loose and inaccurate. If the 
Court has no jurisdiction, the objection may l>e taken by demurrer, if it is 
apparent on the faro of the Bill. Mitf. Fx]. Pi. by Jeremy, 110, 210; 
Hill V. Reardon, 2 Sim. &, Stu. 131. And a demurrer may be for causi^s 
not going to the merits. I^ird Redcsdate h'AH rrmarked, that *' A demur- 
rer being frequently a matter of fonn, is not generally a bar to a new Bill. 
But if the Court, upon a demurrer, has clearly decided u|>on the mi-rits 
of the question between tht; parties, thn derision may be pleaded in bar 
of another suit." Mitf. Fa\. PI. by Jeremy, *Jl« ; f hooper. Va\. PI. 1 \:>. 

1 9 Madd. Ch. Pr. 24H ; Holmes v. Kemson, 7 John. Ch. R. 2tir.; 
Blitf. Eq. PI. by Jeremy, 210. 

« Blitf. Eq. PI. by Jeremy. 301 ; Cooper, Eq. PI. 231 ; Harrison, Ch. 
Pr. by Newl. 232,233; Wyatt, Pr. Reg. 163; Durdant v. Redman, I 
Vsni. R. 79. 

> Pom, f 864. 

EQ. PL. 59 



466 EQUITY PLEADINGS. [CH* IX. 

mains to add a few words. We have already seen, 
that it begins by a protestation, and that it must al- 
ways express the several causes, on which it is found- 
ed.^ If the demurrer does not go to the wlnde Bill, 
it must clearly express the particular parts of the Bill, 
which it is designed to cover ; for if the particulars are 
not distinguished, the Court will be compelled to look 
over the whole Bill, in order to pick them out.' And 
this must be done, not by way of exception, as by de* 
murring to all, except certain parts of the Bill ; but 
by a positive definition of the parts, to which the de- 
fendant seeks to avoid making any answer.' 

^ 458. Thus, for example, where a defendant put 
in an answer and demurrer, the demurrer extending to 
the whole of the Bill, except only as to such part, and 
so much thereof, as requires this defendant to set forth, 
whether, &c., &c. ; it was held, that the demurrer 
ought to be overruled ; for it imposed upon the Court 
the duty of comparing the demurrer and the answer 
with the whole Bill.'' So, where a defendant put in an 
answer to so much of the Bill, as he was advised he 
was bound to answer, making an answer to certain 
charges in the Bill, and then put in a demurrer ^^ to all 
and every the other allegations, and charges, and mat- 
ters, and things in the plaintiff's Bill contained " ; the 
demurrer was overruled ; for it imposed on the Court 
the necessity of finding out, what was demurred to, by 
examining every part of the Bill.* So, where a de- 

^ Ante, § 453, 455, note. 

2 Mitf. Eq. PI. by Jeremy, 213, 214 ; Chetwynd v, Lindon, 2 Ves. 450; 
Salkeld v. Science, 2 Ves. 106; Barton, Suit in Eq. 108, 110, notes. 

3 Robinson v. Thompson, 2 Ves. & B. 118 ; Salkeld ». Science, 2 Ves. 
107; Mitf. Eq. PI. by Jeremy, 214, note (h). 

4 Wetherhead v. Blackburn, 2 Ves. & B. 121, 123. 

5 Devonsher v. Newenham, 2 Sch. & Lefir. 205. Lord Redesdale, on 
this occasion, said; *' I have looked into the cases, and have no doubt 



CH. IX.] DEMURRERS. 467 

murrer was put in to all the relief and to all the dis- 
covery prayed by the Bill, except so far as the Bill 
seeks a discovery touching the several title deeds, &r., 
in the Bill mentioned, &c., &c. ; and as to the residue 
of the Bill, not demurred to, proceeded to answer the 



that this demurrer is infurmal. The answer is, * to so much of the Hill 
as this defendant is advised hn is bound to answer unto.* In the first 
plioe, this cannot be an answer ; for, if the demurrer covers the rest of 
Bill, no exceptions can be taken to the answer, because it does not de- 
scribe, what it is, that has been so answered. Hut the cases on the sub- 
ject have clesrly determined, that the demurrer must express, in the 
clearest manner, what it is that you demur to. It has been repeatedly 
said, that where a defendant demurs to part, and answers to part of a 
Bill, the Court is not to bo put to the trouble of looking into the Hill or 
anawer to see, what is covered by the demurrer ; but that it on^rht to be 
eapitwod, in clear and precise terms, what it is, that the party refuses to 
answer ; so that the Master, upon a reference of the answer to him upon 
exceptions, should be able to ascertain precisely, how far the demurrer 
goes, and what is to bo answered. And I cannot aj?rcc, that it is a proper 
waj of demurring, to vay, that the defendant answers to such and such 
particular facts, and demurs to all the rest of a Hill ; for this would put 
the Master to great difficulty in savin};, what was dcmurn'd to, and 
whether the answer was sulficient, or otherwise. The defendant ought 
to demur to a particular part of the Bill, si>ecifying it precisely, an<i an- 
swer to all the rest. Chetwynd r. Lindoii. 2 Vcs. 4.>0, is an inditferent 
report. But one may collect from the case, what was the opinion of 
Lord Hardwicke on the subject. There he held, that a demurrer 'to 
auch part of the Hill, as ought to compel defendants to discover a con!«pir- 
acy,* did not suffiriently distinguish, what part it was, tliat was coven^d 
by the demurn*r. I confess (independent of the authority of Ijord Ilard- 
wicke), 1 might have thought that sufficiently precise. Hut Ixjnl I lard- 
wicke thought otherwise. He said, ' The ('ourt must {(Nik thniugh the 
whole Bill to s«*e, what the particulars are, which are demurred to. It is 
like the case of a plea which beirjns with ** as to so much of the Hill, as is 
not after answered tn, the party pleads," which has been often oTerrnled ; 
for it cannot be known, what would )>e pleaded to, and what annwered.* 
I apprehend Iiord IIard«icke's idea was this; thsi when a party refuses 
to answer a particular part nf the Hill, he must precisely state, what part 
of the Bill it is, which he ri«fu.»ies to answer, and upon which he demands 
the jodgroent of the (*ouTt, whether he shall answer or not; and that he 
has no right to romjiel the Tourt to go through the whole Bill, to sec, 
what it ia that he refuses, and what he submiu to answer.' 



It 



468 EQUITY PLEADINGS. [CH. IX, 

facts specified and excepted ; the demurrer was held 
bad, and overruled for the like reason.^ 

^ 458, a. Care should also be taken to frame the 
demurrer correctly, with reference to the nature of the 
Bill ; for if the Bill is for discovery only, and the de- 
murrer, without mentioning discovery, is to relief, viz. 
that the plaintiff is not entitled to any such relief 
against the defendant, as is prayed by the Bill, the 
demurrer will be bad, and overruled.* 

^ 469. If the plaintiff conceives, that there is not 
sufficient cause apparent on his Bill to support a de- 
murrer put in to it, or that the demurrer is too exten- 
sive, or is otherwise improper, he may take the judg- 
ment of the Court upon it, and if he conceives, that 
by amending his Bill he can remove the ground of de- 
murrer, he may do so before the demurrer is argued, 
on payment of costs, which vary according to the state 
of the proceedings.* But after a demurrer to the 
whole of a Bill has been argued and allowed, the Bill 
is out of Court, and therefore cannot be regularly 
amended.* To avoid this consequence, the Court has, 
sometimes, instead of deciding upon the demurrer, 
given the plaintiff liberty to amend his Bill, paying 
the costs incurred by the defendant. And this has 
been frequently done in the case of a demurrer for 
want of parties.* Where a demurrer leaves any part 
of a Bill untouched, the whole may be amended, not- 



A Robinson v. Thompson, 2 Ves. & B. 118. But see Hicks v. Rain- 
cock, 1 Cox, R. 40. 

9 Mills V. Campbell, 3 Younge & Coll. 389. 

3 Mitf. Eq. PI. by Jeremy, 215, 216, and cases there cited ; Cooper, 
Eq. PI. 116; Wyatl, Pr. Reg. 164, 165; Baker v, Mellish, 11 Ves. 72. 
Properly speaking the cause is not out of Court, until, upon the allowance 
of the demurrer, the Bill is dismissed by the order of the Court. 

* Ibid. 5 Ibid. 



CH. IX.] DEMURRERS. 469 

withstanding the allowance of the demurrer ; for the 
suit in that case continues in Court, the want of which 
circumstance seems to be the reason of the contrary 
practice, where a demurrer to the whole of a Bill has 
been allowed.^ 

§ 460. If a demurrer should be overruled on argu- 
ment, because the facts do not sufficiently appear on 
the face of the Bill, defence may be made by plea, 
stating the facts necessary to bring the case truly be- 
fore the Court, although it has been said, that the Court 
will not permit two dilatories.^ And after a plea 
overruled, it is said, that a demurrer has l)een allowed, 
bringing before the Court the same question in sub- 
stance as was agitated in arguing the plea.^ But, after 
a demurrer has l)een overruled, a second demurrer will 
not be allowed ; for it would be in eflfect to rehear the 
case on the first demurrer, as, on the argument of a 
demurrer, any cause of dcmurn^r, although not shown 
in the demurrer as filed, may be alleged at the bar ; 
and, if good, it will sup{)ort the demurrer/ 

§ 461. In order to prevent delays by putting in 
frivolous demurrers, it is required by the rules of Court, 
that the demurrer should be signed by counsel/ But 
it b not required to be put in on oath, as it asserts no 
fact, and relies merely upon matter upon the face of 
the Bill.* It is, therefore, considered, that the defend- 
ant may, by advice of counsel, uiK>n the sight of the 
Bill only, be enabled to demur thereto/ And for this 



> Ibid. « Ibid. 3 Ibid. 

^ Mitf. Eq. PI. by Jnremy, 216, 317, and raM*8 there cited; Toopor, 
£q. PI. 115, 110 ; Mont. F^q. PI. \Vi, 113; Baker r. Mellish, U Vvn. 70. 

A BemniCB, Ord. in Chan. 173; Hindc, Ch. Pr. 1|H; Mitf. V^. PI. by 
Jefeaiy,908 ; Coupcr, 1*:^. PI. 114 ; Wyatt, Pr. Refr. 105; Ante, § 441, 
note. 

• Ibid. 7 Ibid. 



470 EQUITY PLEADINGS. [cH. IX. 

reason it is always made the special condition of an 
order giving the defendant time to demur, plead, or 
answer to the plaintiff's Bill, that he shall not demur 
alone.* Whenever, therefore, the defendant has ob- 
tained an order for time, and is afterwards advised to 
demur, he must also plead to, or answer some part of 
the Bill.* It has been held, that answering to scHiie 
fact immaterial to the cause, and denying combination, 
do not amount to a compliance with the terms of such 
an order ; and therefore, upon motion, a demurrer ac- 
companied by such an answer has been discharged.' 

^ 462. This rule has probably been established 
under the notion, that time is not necessary to deter- 
mine, whether a defendant may demur to a Bill or not, 
and the supposition that a demurrer may be filed 
merely for delay .^ But, whether a Bill may be de- 
murred to, is sometimes a subject of serious and anx- 
ious consideration ; and the preparation of a demurrer 
may require great attention, as, if it extends in any 
point too far, it must be overruled. Great inconven- 
ience, therefore, may arise from a strict adherence to 
this rule.* For it often happens, that a defendant 
cannot answer any material part of the Bill, without 
overruling his demurrer ; it being held, that if a de- 
fendant answers to any part of a Bill, to which he 
has demurred, he waives the benefit of the demurrer ; 
or, if he pleads to any part of a Bill before demurred 
to, the plea will overrule the demurrer.* For the 
plaintiff may reply to a plea, or an answer, and there- 



1 Ibid. 9 Ibid. 

3 Mitf. Eq. PI. by Jeremy, 208, 209, and cases there cited ; Cooper, 
Eq. PI. 114, 115. 

* Mitf. Eq. PI. by Jeremy, 209, 210, and cases there cited; Tomkin 
V. Lethbridge, 9 Ves. 178 ; Baker v. Mellish, 11 Ves. 73. 

* Ibid. 6 Ibid. 



CH. IX.] DEMURRERS. 471 

upon examine witnesses, and hear the cause ; but the 
proper conclusion of a demurrer is to demand the judg- 
ment of the Court, whether the defendant ought to 
answer to so much of the Bill, as the demurrer extends 
to, or not.^ The condition, that the defendant shall 
not demur alone, ought therefore, perhaps, to be con- 
sidered liberally ; and it has been formerly said, that 
the Court will not incline to discharge a demurrer, if 
the defendant denies combination only, where he can- 
not answer further without overruling his demurrer.^ 

§ 463. However, the modern practice is according 
to the original strictness of the rule ; and it may be 
better, where the case requires it, to relax the rule 
upon special application to the Court, than to permit 
it to be evaded. Indeed, in some cases, an answer to 
any part of the Bill may overrule the demurrer ; for, if 
the ground of demurrer applies to the whole Bill, the 
answering to any part is inconsistent witli that.^ And, 
therefore, when the ground of demurrer was the gen- 
eral impropriety of tlic Bill, and that the defendant 
ought not, therefore, to be compelled to answer it, his 
answer to an immaterial })art, in compliance with the 
order for time, which he had obtained, was held to 
overrule his demurrer/ 

§ 464. Where a demurrer is put in to the whole Bill, 
for causes assigned on the record, if those causes are 
overruled, the defendant will lie allowed to assign 
other causes of demurrer, ore tenusj at the argument/ 
But, in such a case, if the demurrer, ore tenusj is al- 
lowed, the defendant is not entitled to his costs, (jven 



1 Ibid. 3 ibid. 

' Milf. Eq. PI. bv Jcniiiy, vJlO, 211, and caBos there cited. 
« Ibid. 

> Cooper, Eq. PI. ITi; Cartwrif^ht v. Green, 8 Ves. 409; Bcames, 
Ord in Chin. 174 ; Briiickerhoff v. Brown, John. Ch. R. 149. 



472 EQUITY PLEADINGS. [CH. IX. 

though^he may not be obliged to pay the costs on the 
demurrer on record, which has been overruled.* But 
a demurrer, ore tenuSj will never be allowed, unless 
there is a demurrer on record ; for if there is a plea on 
record, and that is disallowed, a demurrer, are tenuSj 
will also be disallowed.^ Whenever a demurrer, ore 
teniLSj is permitted, it must be for some cause, which 
covers the whole extent of the demurrer.* And it has 
been held, that the right to put in such a demurrer, 
ore tenuSj applies only to cases, where the demurrer is 
to the whole Bill, and not to cases, where it is to a 
part only, notwithstanding it is co-extensive with the 
demurrer to that part.^ 

^ 465. In framing a demurrer to one part of the 
Bill, and answering to another part, care must be 
taken, not only not to include in form any part on 
the one, which is covered by the other ; but also not 
to include in the answer any matter, to which the de- 
murrer, although not in form, yet in substance properly 
applies ; for, in such a case, it seems that the demurrer 
is overruled by the answer.* Thus, for example, 
where a Bill was brought to stay proceedings on an 
award under a submission, whereby it was agreed to 
be made a rule of Court, upon an allegation of fraud 
and corruption in the arbitrators, and the arbitrators 
demurred to the whole Bill, except the charges of 
fraud and corruption, which they answered ; it was 
held, that as the award was to be made a rule of 

1 Ibid. 

2 Cooper, Eq. PI. 112; Durdant v. Redman, 1 Vern. 78, and Mr. 
Railhby's note ; Beames, Ord. in Chan. 174 ; Attorney General v. Brown, 
1 Swanst. 288 ; Hook v. Dorman, 1 Sim. & Stu. 227 ; Ante, §443. 

3 Baker v. Mellish, 11 Ves. 70-76. 

4 Shepherd v. Lloyd, 2 Y. & Jerv. 490. 

^ Ellice V. Goodson, 3 Mylne Sc Craig, 653 ; Crouch v. Hickin, 1 Keen, 
389. 



CH. IX.] DEMURRERS. 473 

Court, the Court, where the rule was to be entered, 
had sole jurisdiction of it ; and that the demurrer ought, 
therefore, to liavc extended to the whole Bill ; and 
that the answers, as to the charges of fraud and cor- 
ruption, overruled the demurrer.^ 



^ Dawaon v. Sadler, I Sim. & Stu. 537. The ground of this decision 
doea not seem to be very intelligible ; for it is not easy to say, why, upon 
principle, though a demurrer might have been more broad, it is not main- 
tainable aa to the matter, to which it is applied, if it completely answers 
that. In Crouch t. Ilickin, 1 Keen, R. 3d9, Lord Langdale seems to 
have admitted, that the distinction was too refined. On that occasion, he 
said; "A defendant, taking care to distinguish the different parts of a 
Bill, may plead to one part, and demur to the rest ; or, if necessary, put in 
aeveral demurrers to distinct parts of the Bill. But I conceive, that, 
aocording to the rules, perhaps too refined, on which the Court has acted, 
the distinct defences must be exclusively applicable to the distinct parts of 
the Bill, to which they are applied ; and that a defence, though in words 
applied to only one part of the Bill, if it should on the face of it be appli- 
cable to the whole Bill, is not good, and cannot stand in conjunction with 
another distinct defence, which is applicable and applied to anoUicr dis- 
tinct part of Uic Bill.'* 



EQ. PL. 60 



474 EQUITY PLEADINGS. [CH« X. 



CHAPTER X. 



DEMURRERS TO RELIEF. 



^ 466. Having disposed of these preliminary mat- 
ters in regard to the nature, oflfice, and form of de- 
murrers in general, we shall now proceed to the more 
particular consideration of the causes, or reasons, which 
may be assigned as grounds of demurrer to original 
Bills for relief. These may properly be divided into 
three classes, (1.) To the jurisdiction; (2.) To the 
person of the plaintiff; and, (3.) To the matter of the 
Bill, either as to its substance, or as to its form and 
frame.^ 

^ 467. In regard to demurrers to the jurisdiction, 
the subject admits of a further subordinate division 
into four heads. (1.) That the subject is not cogniza- 
ble by any municipal Court of Justice. (2.) That the 
subject is not within the jurisdiction of a Court of 
Equity. (3.) That some other Court of Equity is 
invested with the proper jurisdiction. (4.) That some 
other Court possesses the proper jurisdiction.^ 

§ 468. And, first, that the subject is not properly 
cognizable by any municipal Court of Justice. This 
may arise from the subject-matter being entirely of a 
political nature, and therefore constituting a fit subject 



1 Cooper, Eq. PI. 118. In this division, I have implicitly followed Mr. 
Cooper. The whole subject of demurrers has been very amply treated 
by Lord Redesdale and Mr. Cooper, and I have drawn nearly all my ma- 
terials from these sources, following their language, unless where some 
qualification seemed indispensable. 

2 Cooper, Eq. PI. 118, 119. 



CH. Z*] DEMURRERS TO RELIEF. 475 

for negotiation or treaty, by the executive department 
of the Government. Thus, for example, where |X)liti- 
cal treaties were entered into, by a foreign sovereign 
in India, with the East India Company, acting as an 
independent state under an act of Parliament, and 
the foreign sovereign sought by a Bill to enforce cer- 
tain stipulations under those treaties, it was held, that 
the subject-matter was not properly cognizable by any 
municipal Court of Justice.* Ujwn the same ground, a 
treaty between two sovereigns would be held not to be, 
generally, the subject of any private municipal juris- 
diction of the Courts of either, as it involves the politi- 
cal relations l)etween the two coimtries, and is, there- 
fore, properly a matter of state.* But this proposition 
must be received with some limitations ; for where a 
treaty provides for the assertion of private rights, or 
for objects properly redressible in Courts of Justice, and 
having no connection with, and involving no rights or 
duties of sovereignty, there is nothing to prevent mu- 
nicipal Courts of Justice from enforcing such treaty stip- 
ulations. Thus, for example. Courts of Prize will re- 
store captured property, where the case has been pro- 
vided for by treaty, at the suit of the party in interest, 
although the capture may have been originally lawful.' 
§ 469. In the United States, the ground is perfectly 
clear, upon the express terms of the Constitution, which 
declares, that the judicial power of the United States 
** shall extend to all cases in law and Equity arising 



* Nibob of the Carnatir v. Kaal India Company, 1 Vc«. jr. 371 ; S. C 
9 Ym. jr. 56; 4 Bro. Ch. R. 1»0 ; Coopor, Kt\. PI. 110, 120. 

• Ibid. ; Foster r. Neilemn, 'J IVltra, H. aiO. 

> See Nabob of the Carnalic v. Kasl India Company, 2 Ves. 59. fiO ; 
B. C. 4 Bro. Ch. R. 109 ; Vnilcd States r. The Pcpgy, I (ranch, R. 103, 
106; United States r. Perchrnian, 7 Prtcr«, R. 51 ; The Diana, 6 Rob. R. 
60; The Charlotte, 5 Rob. R. 303 ; The Elcnora Wilhelmina, 6 Rob. R. 
331. 



476 EQUITY PLEADINGS. [CH. X. 

under this Constitution, the laws of the United States, 
and treaties made, or which shall be made, under their 
authority.^ And rights derived from, and protected by 
treaty stipulations, have been often enforced in our 
Courts of Justice. Still, however, there can be no 
doubt, that cases arising under foreign treaties, which 
involve controversies or considerations purely of a po- 
litical or sovereign character, or purely executory by 
the Governments themselves, would be held to be, from 
their very nature and character, incapable of being 
enforced in any of the Courts of the United States.* 
Thus, for example, the treaty, by which Louisiana was 
purchased, in 1803, contained a stipulation for the ad- 
mission of the territory and its inhabitants into the 
Union as an independent State.^ But it can scarcely 
be doubted, that the stipulation was incapable of being 
enforced by France in any of our Courts of Justice. 
On the other hand, where, as in the Florida treaty, in 
1819,^ the titles to lands in that territory were express- 
ly confirmed and held valid, there is as little doubt, that 
those tides, and the treaty stipulations respecting the 
same, ought to be enforced in our Courts of Justice. 
Indeed, from their very nature and objects, many treaty 



1 1 Story on the Constit. xxvii. ; Constitution, Art. 3, § 2; 3 Story on 
Constit, § 1631, 1637. 

3 Foster v. Neilson, 2 Peters, R. 255 ; Soulard v. United States, 4 
Peters, R. 411 ; United States v. Percheraan, 7 Peters, R. 51. Ques- 
tions may arise under our treaties with the Indian tribes, which are prop- 
erly cognizable by our Courts of Justice, although they may involve politi- 
cal considerations applicable to the due exercise of State sovereignty. 
Such were the questions involved in the cases of the Cherokee Nation v. 
The State of Georgia, 5 Peters, R. 1, and Worcester v. The State of 
Georgia, 6 Peters, R. 515. This difference arises from the provisions of 
the Constitution of the United States, which make the treaties of the 
United States the supreme law of the land. 

3 Treaty with France of 1803, Art. 3. 

4 Treaty with Spain, 1819. See Cameal v. Banks, 10 Wheat. R. 181 ; 
Foster v. Neilson, 2 Peters, R. 216 ; Soulard v. United States, 4 Peters, 
R. 511; United States v, Percheman, 7 Peters, R. 51. 



CH. X.] DEMURRERS TO RELIEF. 477 

Stipulations can be properly carried into effect by Courts 
of Justice ; and, accordingly, there are numerous in- 
stances, in which they have been recognized and en- 
forced accordingly.* 

^ 470. Another illustration of the general doctrine 
may be seen in the case of the confiscation of certain 
bank stock, held in England by the Province of Mary- 
land before the American War, and invested in trustees 
for certain objects, which stock had been confiscated 
by the State during the Revolutionary War, and after 
the peace was claimed by the Proprietaries under the 
old government, and by the new State of Maryland. 
It was held that the claim was such as could not pro{>- 
erlj be cognizable in any municipal Court of Justice ; 
for the nature and extent of the right of confiscation 
were fit subjects for ix)litical discussion, and not for 
discussion in Courts of Justice ; and the Government 
alone had the power to say, what ought to be done 
with the property in that case, it being, under the cir- 
cumstances, properly to be deemed as bona vacmUia^ 
belonging to the Crown.^ 



> Ftirfu*B Devisee v. Hunter, 7 Cranch, R. 603, 610 ; S. C. I Wheat. 
R. 304; Orr v. Hodgson, 4 Wheat. K. 453,460; State of Georgia v. 
Brailsford, 3 Dall. R. 1, 4, 5; Ware v. Hylton, 3 Dall. R. 199, ^20; 
MrUTaine v. Coxc's IjCssco, 4 Cranrh. 209, 212; Chirac v. Chirac, 2 
Wheat. R. 259, 269 ; Hughe.** v. F^lwarHs, 9 Wheat. 489, 496 ; Carnoal 
V. Banks, 10 Wheat. R. IHi ; I3hght*s Ijav^^iiv. Roohoster, 7 Wlieat. R. 
535; Gordon r. Ki'rr, 1 Wa«h. Cir. R. 322; St^ciuty for Propag. Gospt'l 
». New Haven, 4 Wlicat. R. 461 ; FoMcr r. Nrilwm, 2 Peters, R. 216; 
Soulaxd V. United States, 4 Peters, R. 511 ; I'nited States v. Perchenian, 
7 Peters, R. 51 ; Tnitid StatLS v. Arredondo, 6 Peters, R. 691 ; riiiied 
Sutesv. Clarke, H IVters, R. 436; Worcester v. State of Georgia, 6 
Peters, R. 515; Cherokee Nation v. Stau* of Georgia, 5 Peters, R. I. 

• Barclay r. Rusm-II, 3 Ves. 422 ; Doll»cr r. Bank of England, 10 Vch. 
354 ; Cooper, I-^q. PI. 120, 121. This doctrine has not lieen thought ap- 
plicable to canes of cunfiHcations of debts made in the American Revolu- 
tion by the States, where the right to recover the same was provided fur 
by BubMquent tieatiea. See Ware v. Hylton, 3 Dall. R. 190, 220. 



478 EQUITY PLEADINGS. [CH. X. 

^471. Another illustration may be found in cases 
in England, where the question involved was, as to 
the nature and extent of a subordinate sovereignty 
derived from the Crown, which was held to be prop- 
erly cognizable by the King in Council, and not 
elsewhere. Thus, for example, where an individual 
claimed a province, or an island, in the nature of a 
feudal principality, as was the case of the claim of 
the Earl of Derby, with regard to the Isle of Man, in 
the reign of Queen Elizabeth ; and as was the case 
of the claim of the representatives of the Duke of 
Montague with regard to the island of St. Vincents, 
in the year 1764 ; the exclusive jurisdiction was held 
to belong to the King in Council.^ So, the original 
jurisdiction in cases relative to the boundaries between 
the adjoining provinces belonging to the British em- 
pire, involving, as it does, the right of dominion and 
proprietary government under the grant of the Crown, 
has been held to belong exclusively to the King in 
Council.* It was not unfrequendy exercised ante- 
cedently to the American Revolution, in cases of dis- 
putes as to boundaries between the then colonies and 
povinces belonging to the British empire. Such, for 
example, were the cases of controverted boundaries 
between the Province of New Hampshire and that of 
Massachusetts, and between the Proprietary Govern- 
ment of Pennsylvania and that of Maryland.' Under 
the Constitution of the United States, the same au- 
thority, as to disputed boundaries between the States, 



1 Cooper, Eq. PI. 122; 1 Black. Comm. 231. 

2 Cooper, Eq. PI. 122, 123; Penn v. Lord Baltimore, 1 Ves. 446, 447; 
Massie v. Watts, 6 Cranch, R. 158. 

3 Penn v. Lord Baltimore, 1 Ves. 446, 447 ; 1 Black. Comm. 232 ; 3 
Story on the Constit. § 1676. 



CH. X.] UEIfURRERS TO RELIEF. 479 

seems delegated to the Supreme Court of the United 
States.^ 

§ 472. Secondly ; That the subject of the suit is 
not within the jurisdiction of a Court of Equity. And 
here it may be stated, as a settled doctrine, that when- 
ever there is no sufficient ground shown in the Bill for 
the interference of a Court of Equity, the defendant 
may demur to the Bill for want of Equity to sustain 
the jurisdiction.' The general nature and the true 
extent of the jurisdiction of Courts of Equity, wheth- 
er concurrent, or exclusive, or auxiliary, have been al- 
ready considered at large in a former work, the Com- 
mentaries on Equity Jurisprudence ; and, therefore, it 
would be wholly a misplaced inquiry, to go into a re- 
examination of that subject in this place. The gen- 
eral objects of that jurisdiction have been well summed 
in a passage in Lord Kedcsdale's work, which may, 
without impropriety, be re|)eatcd in this connection. 
" The jurisdiction," says he, " when it (a Court of 
Equity) assumes the power of decision, is to be ex- 
ercised ; (1.) Where the principles of law, by which 
the ordinary Courts are guided, give a right ; but the 
powers of those Courts are not sufficient to afford a 
com|dete remedy, or their modes of proceeding are 
inadequate to the purpose; (2.) Where the Courts 
of ordinary jurisdiction are made instruments of in- 
justice; (3.) Where the principles of law, by which 
the ordinary Courts are guided, giv<.' no right; but 
upon the principles of universal justice, the intej^fer- 
ence of the judicial power is necessary to prevent a 



> 3 Story Coinm. § lft73 - 1675; New York v. (Connecticut, 4 Dall. 
R. 3; New Jeracy r. New York, 5 Petert, R. 3S4 ; Rhode Island v. 
Biaanchotetu, 13 Peters, R. 23; S. C. 14 Peters, R. 810. 

• 9 Madd. Ch. Pr. 229, 230. 



480 EQUITY PLEADINGS. [CH. X. 

wrong, and the positive law is silent. And it may 
also be collected, that Courts of Equity, without de- 
ciding upon the rights of the parties, administer to 
the ends of justice by assuming a jurisdiction; (4.) 
To remove impediments to the fair decision of a 
question in other Courts; (6.) To provide for the 
safety of property in dispute pending a litigation, and 
to preserve property in danger of being dissipated or 
destroyed by those, to whose care it is by law intrust- 
ed, or by persons having immediate, but partial in- 
terests ; (6.) To restrain the assertion of doubtful 
rights in a manner productive of irreparable damage ; 
( 7.) To prevent injury to a third person by the doubt- 
ful titles of others; and, (8.) To put a bound to vex- 
atious and oppressive litigation, and to prevent mul- 
tiplicity of suits. And further, that Courts of Equity, 
without pronouncing any judgment, which may affect 
the rights of parties, extend their jurisdiction ; (9.) 
To compel a discovery, or obtain evidence, which may 
assist the decision of other Courts; and, (10.) To 
preserve testimony, when in danger of being lost, be- 
fore the matter to which it relates can be made the 
subject of judicial investigation." ^ 

§ 473. In genera). Courts of Equity will not as- 
sume jurisdiction, where the powers of the ordinary 
Courts are sufficient for the purposes of justice. And, 
therefore, it may be stated as a general rule, subject 
to few exceptions, that where the plaintiff can have 
as effectual and complete a remedy in a Court of Law, 
as in a Court of Equity, and that remedy is direct, 



1 Mitf. Eq. PI. by Jeremy, 111, 112. Lord Redesdale has, in the sub- 
sequent pages of his Treatise, gone into a full exposition of each of these 
heads, to which the reader may be referred for more full illustrations. 
See Mitf. Eq. PI. by Jeremy, 112-151. 



CH. X.] DEMURRERS TO RELIEF. 481 

certain, and adequate, a demurrer, which is in truth a 
demurrer to the jurisdiction of the Court, will hold.^ 
But, where tliere is a clear right, and yet there is no 
remedy in a Court of Law, or the remedy is not plain, 
adequate, and complete, and adapted to the particular 
exigency, then, and in such cases. Courts of Equity 
will maintain jurisdiction. 

^ 474. The full application of these tests, with the 
accompanying exceptions and limitations, belonging 
to the general rule, constitute, as has been already 
intimated, the appropriate functions of a Treatise on 
Equity Jurisprudence. But we may here glance at a 
few cases, which may serve to illustrate the rule, and 
its exceptions and limitations. Thus, for example, if 
the sole object of a Bill is to decide u|)on the validity 
of a will of real estate, or of personal estate, and no 
other Equity is shown on the face of the Bill to sustain 
it, a general demurrer will lie ; for the proper juris- 
diction to try the validity of a will of real estate is a 
Court of Law ; and of a will of personal estate, the 
Ecclesiastical Court, or other Court having a jurisdic- 
tion in matters of the probate of wills.^ 

§ 475. So, if a Bill should be brought by the exec- 
utrix of an attorney for money due from the defend- 
ant, for business done as an attorney, the Court would 
allow a demurrer to the relief; because there is an 
adequate remedy at law, and an act of Parliament has 
also pointed out a summary mode of redress.' 

^ 476. So, if a Bill should Ix; brought for the pos- 



> Mitf. Eq. PI. by Ji^nmy, 123; ('ooi>or. Ivj. PI. 124. 

* Jones V. Jones, 3 Mt^riv. K. \(\l ; JoncH p. Fn»3t, Jacob, K. ifMi; 
S. C. 3 Madd. R. 1 ; S Story on Va\. Jump. ^ 1415- 1448; Coojut, Fai. 
PI. 1S6; Gaines and Wife v. Chew, 2 How. Sup. Ct. K. 

» Parry r. Owen. Ainbl. R. 10«»; S. C. 3 Atk. 740; Cwiper. Rj. PI. 
194. 

EQ. PL. 61 



482 EQUITY PLEADINGS. [CH. X. 

session of land, which is commonly called an Eject- 
ment Bill, it would be demurrable; for the proper 
redress is at law. And even if such a Bill should 
charge, that the defendant had gotten the title deeds, 
and mixed the boundaries ; and should, upon that 
ground, pray for a discovery, possession, and account, a 
demurrer (at least upon the doctrine maintained in 
England) would lie. For, although the plaintiff would 
be entitled to the discovery of the title deeds ; yet he 
would not have any title to the relief ; that relief, after 
the discovery, being properly to be given at law ; and 
by praying relief, as well as discovery, his whole Bill 
would be demurrable.* 

^ 477. So, (as we have already seen,) where a Bill, 
seeking a discovery of deeds or writings, prays relief, 
founded on the deeds or writings, of which the discov- 
ery is sought ; if the relief so prayed be such, as 
might be obtained at law, if the deeds or writings 
were in the custody of the plaintiff, he must annex to 
his Bill an affidavit, that they are not in his custody or 
power, and that he knows not where they are, unless 
they are in the hands of the defendant ; otherwise, 
the Bill will be demurrable.^ 

^ 478. So, if a Bill should be brought for the dis- 
covery and payment of a lost or suppressed instrument, 
upon which, but for the loss or suppression, there 
would be a complete remedy at law, the Bill (as we 
have seen^) will be demurrable, unless there is an- 
nexed to it an affidavit of the loss, and unless, also, in 



1 Cooper, Eq. PJ. 125; Loker v. Rolle, 3 Ves. 3; Ryves v. Ryves, 
3 Ves. 342; Ante, § 288, 311. And see RusselJ v. Clarke's Executors, 
7 Cranch, 69, 89 ; 1 Story on Eq. Jurisp. ^ 71. 

9 Ante, ^ 288, 313; Mitf. Eq. PI. by Jeremy, 54, 124, 125; Cooper, 
Eq. PI. 61, 208. 

3 Ante, § 288, 313. 



CH. X.] DEMURRERS TO RELIEF. 483 

proper cases, it contains an offer of indemnity, and 
also a suggestion, that the evidence of the plain tifl^'s 
demand is not without such discovery in his power, 
and is essential to his rights.' A fortiori^ if the Bill 
should seek payment of a bond, or other instrument, 
where the remedy is complete at law, without suggest- 
ing any loss or suppression, it would be demurrable.^ 

§ 479. So, if a Bill should be brought for an ac- 
count and share of prize-money, where it was appar- 
ent, from the face of the Bill, that it was for a sum 
certain in the hands of the defendant, a demurrer 
would lie ; for the remedy would be complete at law.' 

§ 480. So, if a policy of insurance should be made 
in the name of an agent or trustee, and a loss should 
occur, and the agent or trustee should refuse to sue 
thereon, a Bill for relief, suggesting these facts, and 
making the agent or trustee and the underwriters par- 
ties, would be demurrable ; because the proper remedy 
18 at law ; for on every such |)olicy, if made in the name 
of an agent for the benefit of his principal, the princi- 
pal, as well as the agent, may sue in his own namc.^ 
Nor will it help the matter, that there is an allegation 
in the Bill, that the witnesses are abroad, or dead, for 
that fact will not alone change the forum.' 

^481. On the other hand, matters of defence. 



1 Mitf. Eq. PJ. by Jeremy, 51, 133-12.); Rootham r. Dawson, 
3 Anit. 850; Whilchurch v. Goldinp, 2 P. Will. 541 ; Cooper, V^. PI. 
126; Walmpslcy v. Child, 1 Vrs. 341, 345; Whitfield r. Faimsot, 
1 Ves. 393; Humphreys v. Humphreys, 3 P. Will. 395; Ante, § 28H, 
313. 

• Humphreys v. Humphreys, 3 P. Will. 395 ; Hook v. Dorman, 1 Sim. 

& Stu. S37. 
' Ogle V. Haddock's Administrator, 1 Ves. 1C2. 

♦ Dbegelofte. London Assur. Comp., Mosel. R 83; Fall •. Chambers, 
Moeel. R. 193; Mottcaux v. London Assur. Comp., 1 Atk. 547; Mitf. 
Eq. PL by Jeremy, 125. 

»Ibid. 



484 EQUITY PLEADINGS. [cB* X. 

which are good at law, will not ordinarily be redressed 
in Equity. Thus, if a Bill is to be relieved against a 
writ of inquiry, executed without due notice, it will 
be bad on demurrer, because it is properly remediable 
at law.^ So, if a Bill is founded on an allegation, that 
a judgment has been obtained against the plaintiff for 
goods sold, for which he is not personally liable, but 
for which he had contracted as an agent for the Gov- 
ernment, it will be bad on demurrer ; for, if true, it 
will constitute a perfect defence at law.* 

482. Upon the same ground, if a Bill is filed for an 
account and payment, the subject being matter of set- 
off, and capable, upon the allegations in the Bill, of 
complete proof at law, a demurrer to the Bill will be 
sustained ; for, under such circumstances, the relief at 
law will be perfect, and the interposition of a Court 
of Equity will be unnecessary.* It will be different, if 
a discovery is indispensable to establish the plaintiff's 
right. 

^ 483. Hitherto we have been considering cases, 
where there is a complete remedy at law. But the 
like principle will apply to cases, where, upon the face 
of the Bill, there is no remedy, either at law or in 
Equity.^ Thus, if a Bill should seek to recover back 



1 Boyd V. Lomax, Rep. Temp. Finch. 335. 

» See Macbeath v. Haldimand, 1 Term R. 172 ; Debigge r. Howe, 
3 Bro. Ch. R. 155 ; Cooper, Eq. PI. 194 ; Mitf. Eq. PI. by Jeremy, 187. 
But see Graham v. Stamper, 2 Vern. R. 146, contra. 

3 Dinwiddie v. Bayley, 6 Ves. 136; Cooper, Eq. PI. 123; Moses v. 
Lewis, 12 Price, R. 502. 

* The common form of a demurrer for want of Equity, is as follows : 
** These defendants, by protestation, not confessing all or any of the mat- 
ters and things in the said complainant's Bill contained, to be true in such 
manner and form as the same are therein set forth and alleged, do demur 
to the said Bill, and for cause of demurrer show, that the said complain- 
ant has not, by his said Bill, made such a case as entitles him, in a Court 
of Equity, to any discovery from these defendants respectively, or any of 



CU. X.] DEMURRERS TO RELIEF. 485 

iDODey, which has been voluntarily paid by a party, u|)on 
a suit being threatened or brought, and his defence 
is, that tliere was fraud in the transaction, on which the 
suit was brought, or to be brought, the Bill would be 
demurrable, notwithstanding he should state in his Bill, 
that, at the time when he made the payment, it was 
under a protest, that he would seek redress in Equity ; 
for, nan constat^ that his defence might not have been 
efibctually sustained at law ; and, if so, it would have 
been his duty to make it in the suit at law.' 

^ 484. The same principle will apply to a Bill, 
which states a case within the Statute of Limitations 
at law, and upon which Courts of Equity follow the 
analogy of the law ; for, under such circumstances, 
Courts of Equity hold, that the objection may be 
taken as a defence by demurrer ; and that, if the plain- 
tiff be within any exception of the statute, it is incum- 
bent on him to state it in his Bill. Thus, for exam- 
ple, if it should appear on the face of a Bill, that the 
cause of action (arising upon a simple contract) ac- 
crued more than six years before the filing of the Bill, 
a demurrer would lie.^ 



UMm, or any relief against them, as to the matters contained in the said 
Bill, or any of such matters, and that any discovery which can be made 
by these defendantfl, or any of them, touching; the matters complained of 
in the said Bill, or any of them, cannot be of any avail to the said com- 
plaiBtnt for any of the purposes for which a discovery is sought against 
Umm defendants by the said Bill, nor entitle the said complainant to any 
relief in this Court, touchinj? any of the matters therein complained of. 
Wherefore, and for divers other pood causes of demurrer ap|)carinfr in the 
■aid Bill, these defendants do demur thereto, and they pray the judgment 
of thia honorable Court, whether they shall be compelled to make any 
further and other answer to the said Bill ; and they humbly pray to be 
djaoiiaaed from henc^; with their reasonable costs in this behalf sustained.** 
Van Heyth. ¥a\. lirafls. iVJ. Sec similar form, Ante, $ 135, note. 

> Kemp V. Pryor, 7 Ves. *237, 250, 5i51 ; CoojH'r, Va\. VI 124, 125. 

* Hoare v. Peck, A Sim. R. 51 : Wisner v. Barnet, 4 Wash. Cir. R. 
031 ; filiU*. Eq. PI. by Jeremy, 272, 273 ; Foster v. HodgM>n, VJ Vcs. 



486 EQUITY PLEADINGS. [CH. X» 

^ 485. The same principle will apply,' where there 
is noiy according to the practice of Courts of Equity, 
any right, or any remedy in Equity, even although 
there might be at law. Thus, if a bar might not be 
good in a Court of Law by reason of the lapse of time ; 
yet a Court of Equity might nevertheless sustain it ; for 
it never administers to stale claims, or encourages gross 
laches. Hence, where there has been an adverse pos- 
session by a party, claiming the title, and taking the 
rents of an estate for twenty years, if a Bill is brought 
after that time by a plaintiff, insisting upon his right 
to the same estate, it will be held demurrable, even 
although a Court of Law might sustain an ejectment in 
such a case ; for the rule in Equity is, that after there 
has been an adverse possession of twenty years, not 
accounted for by some disability, such as coverture, in- 
fancy, or the like, a Court of Equity ought not to in- 
terfere, to disturb the possession ; but it will leave the 
parties to their remedies at law.^ 

^ 486. Thirdly ; That some other Court of Equity 
is invested with the proper jurisdiction. This is a case, 
which can rarely occur in America, from the structure 
of our local Equity tribunals. Still, however, if a case 
should occur in the Courts of the United States, where 
the question, although of equitable jurisdiction, should 
be more appropriate for a decision in the State tri- 
bunals ; such as the case of a charity, to be executed 
by the State Government, as parens patriiBj it would 



160; Cooper, Eq. PI. 254, 255. Lord Redesdale seems to have held, 
that the defence could only be taken by plea or answer ; but this is cer- 
tainly not the present doctrine. Mitf. Eq. PI. by Jeremy, 272," 273. But 
see Ibid. 212, 213, and notes ; Post, § 503. 

I Cholmondeley v, Clinton, 1 Turn. & Russ. 107, 119; Hardy v. 
Reeves, 4 Ves. 479. 



CH. X.] DEMURRERS TO RELIEF. 487 

probably be thought, that it ought to be remitted to the 
State tribunals.^ 

^ 487. In regard to England, the cases, in which 
such a question can arise, are also rare. And, upon 
this subject, the language of Lord Redesdale may 1x5 
cited as containing every material consideration. " It 
has been before noticed," says he, " that the estab- 
lishment of Courts of Equity has obtained throughout 
the whole system of our judicial polity ; and that most 
of the inferior branches of that system have their 
peculiar Courts of Equity, the Court of Chancery as- 
suming a genenil jurisdiction in cases not within the 
bounds, or beyond the powers of inferior jurisdictions. 
The principal of the inferior jurisdictions in England are 
those of the Counties Palatine of Chester, Lancaster, 
and Durham; the Courts of Great Session in Wales; 
the Courts of the two Universities of Oxford and Cam- 
bridge; the Courts of the City of London ; and of the 
Cinque-ports. These are necessarily bounded by the 
locality, either of the subject of the suit, or of the 
residence of the parties litigant. Where those cir- 
cumstances occur, which give them jurisdiction, they 
have exclusive jurisdiction in matters of Equity, as 
well as matters of law; and they have their own 
peculiar Courts of appeal, the Court of Chancery as- 
suming no jurisdiction of that nature, although it will 
in some cases remove a suit l)efore the decision into 
the Chancery by writ of certiorari. When, therefore, 
it appears on the face of a Bill, that another Court of 
Equity has the pro|>er jurisdiction, either immediately 
or by way of appeal, the d«rfendant may demur to the 
jurisdiction of the Court of Chancery. Thus, to a Bill 

1 See Baptifit Asaoc. p. II:irt*ft Executors, 4 Wheat. R. 1 ; 2 Story chi 
Eq. Jurisp. ch. 31,4 1136-1194. 



488 SQUITT PLEADINGS. [CH. X 

of appeal and review of a decree in the Court of the 
County Palatine of Lancaster, the defendant demurred ; 
because on the face of the Bill it was apparent, that 
the Court of Chancery had no jurisdiction ; and the 
demurrer was allowed. But demurrers of this kind 
are very rare ; for the want of jurisdiction can hardly 
appear upon the face of the Bill, at least so conclusive- 
ly, as is necessary to deprive the Chancery, a Court of 
general jurisdiction, of cognizance of the suit. And 
a demurrer for want of jurisdiction, founded on locality 
of the subject of the suit, which alone can exclude the 
jurisdiction of the Chancery in a matter cognizable in 
a Court of Equity, has even been treated as informal 
and improper. This, however, can only be considered 
as referring to cases, where circumstances may give 
the Chancery jurisdiction, and not to cases, where no 
circumstances can have that effect. Thus, the Coun- 
ties Palatine, having their peculiar and exclusive Courts 
of Equity under certain circumstances, which will be 
more fully considered in another place, the Court of 
Chancery will not interfere, when all those circum- 
stances attend the case, and they are shown to the 
Court. Though, if those circumstances are not shown, 
or if they are not shown in proper time, and the de- 
fendant, instead of resting upon them, and declining 
the jurisdiction, enters into the defence at large, the 
Court, having general jurisdiction, will exercise it. 
But where no circumstance can give the Chancery 
jurisdiction, as in the case alluded to of a Bill of ap- 
peal and review of a decree in a County Palatine, it 
will not entertain the suit, even although the defendant 
does not object to its deciding on the subject." ^ 



^ Mitf. Eq. PI. by Jeremy, 151-153, and cases there cited; Cooper, 
Eq. PL 140, 141, 160, 161, 262; Lord Coningsby's case, 9 Mod. 95. 



CH. X.] DEMURRERS TO RELIEF. 489 

^ 488, Where the defence intended to be made is, 
that another Court of Equity has jurisdiction of the 
case, it should be taken by demurrer, if it appears on 
the face of the Bill ; or, if it does n